UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 18, 2019
___________

NII HOLDINGS, INC.
(Exact name of registrant as specified in its charter)

Delaware
(State or other jurisdiction
of incorporation)
001-37488
(Commission File Number)
91-1671412 
(IRS Employer
Identification No.)
 
 
 
12110 Sunset Hills Road, Suite 600
Reston, Virginia
 (Address of principal executive offices)

20190
(Zip Code)

Registrant's telephone number, including area code: (703) 390-5100

Not Applicable
(Former name or former address, if changed since last report)


Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

¨    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class
Trading Symbol(s)
Name of Each Exchange on Which Registered
Common Stock, par value $0.001 per share
NIHD
Nasdaq Global Select Market


Indicate by check mark whether registrant is an emerging growth company as defined in Rule 405 of Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.
 
Emerging growth company  ¨
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨






Item 1.01.     Entry into a Material Definitive Agreement.

On December 18, 2019, in connection with the Transaction (as defined in Item 2.01 below), NII Holdings, Inc. (“NII”) entered into a First Supplemental Indenture (the “Supplemental Indenture”), to the Indenture, dated August 14, 2018, between NII and Wilmington Trust, National Association, as trustee (the “Indenture”), that governs its 4.25% Convertible Senior Notes due 2023 (the “Notes”). Pursuant to the Supplemental Indenture, NII irrevocably elected cash settlement as the settlement method for any conversion of the Notes.

In addition, NII entered into an Escrow Agreement with Wilmington Trust, National Association, as escrow agent and as trustee (the “Notes Escrow Agreement”), whereby NII agreed to fund an escrow account in the amount of $134.8 million from the net proceeds of the Transaction pursuant to Section 11.04 of the Indenture in order to satisfy NII’s obligations under the Notes and the Indenture. As more fully described in Item 2.01 below and incorporated herein by reference, NII also entered into the Transaction Escrow Agreement.

The foregoing descriptions of the Supplemental Indenture, the Notes Escrow Agreement and the Transaction Escrow Agreement are not complete and are qualified in their entirety by reference to the full text thereof, which are filed herewith as Exhibits 4.1, 10.1 and 10.2, respectively, and are incorporated herein by reference.

Item 2.01.    Completion of Acquisition or Disposition of Assets.  

On December 18, 2019, NII completed the previously announced sale of its wireless operations in Brazil (“Nextel Brazil” and such sale, the “Transaction”) in accordance with the terms of the Purchase Agreement, dated March 18, 2019, by and among América Móvil, S.A.B. de C.V. (“AMX”), NII International Holdings S.à r.l. (“NIIH”), AI Brazil Holdings B.V. (“AI Brazil”) and NII (the “Purchase Agreement”), as amended from time to time.

At the closing of the Transaction, AI Brazil sold all of its interests in Nextel Holdings S.à r.l. (“Nextel Holdings”) to NII Brazil Holdings S.à r.l. (“NIIBH”), and NIIH sold all of the issued and outstanding shares of NIIBH to AMX, resulting in AMX acquiring direct ownership of NIIBH and indirect ownership of all of the issued and outstanding shares of Nextel Brazil. The aggregate purchase price was $948.5 million, after making adjustments pursuant to the Purchase Agreement to add a $30.3 million reimbursement of capital expenditures and a $16.9 million working capital adjustment and to deduct a $3.7 million selling and marketing spending shortfall compared to budget. After deducting $491.6 million of net debt, the net purchase price at closing was $456.9 million. The purchase price is subject to review and adjustment by AMX within 45 days of the closing of the Transaction.

In consideration for the sale of its 27.55% ownership interest in Nextel Brazil, AI Brazil received a $2.5 million preferred return and its $125.2 million pro rata share of the net purchase price. After deducting these amounts, NII’s share of the net purchase price was $329.2 million.

Pursuant to the terms of the Purchase Agreement, $30.0 million of the net proceeds due to NII was placed into an 18-month escrow account to secure NII’s indemnification obligations under the Purchase Agreement with AMX, with Citibank, N.A. as escrow agent (the “Transaction Escrow Agreement”). After taking into account the amounts placed into escrow pursuant to the Transaction Escrow Agreement and the Indenture Escrow Agreement described above and accounting for a $1.9 million upward adjustment for a decrease in estimated accrued tax contingencies pursuant to the Purchase Agreement, the net proceeds to NII were $166.3 million.







Item 3.01.    Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

On December 18, 2019, in connection with NII’s plan to dissolve following the closing of the Transaction, NII notified the Nasdaq Stock Market of its intent to delist its common stock, par value $0.001 (the “Common Stock”) from the Nasdaq Global Select Market. NII expects to file a Form 25 with the Securities and Exchange Commission and Nasdaq Stock Market relating to the delisting of the Common Stock on December 30, 2019, with trading of its Common Stock suspended before the market opens on January 2, 2020. NII does not expect that a trading market will develop for its Common Stock following suspension of trading on Nasdaq. NII expects that the official delisting of the Common Stock will be effective January 9, 2020.

Item 8.01.        Other Events.

On December 18, 2019, NII issued a press release announcing the completion of the Transaction, and a separate press release announcing the planned delisting of NII’s common stock and planned dissolution of the company. A copy of these press releases are attached as Exhibits 99.1 and 99.2, respectively.

Item 9.01.     Financial Statements and Exhibits.      

(b)    Pro Forma Financial Information

Unaudited pro forma condensed consolidated financial statements of NII, which reflect the sale of NII’s interests in Nextel Brazil to AMX, are furnished as Exhibit 99.3 to this Current Report on Form 8-K. The information contained in these pro forma financial statements shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to liabilities of that section, nor shall it be deemed incorporated by reference into any filing under the Securities Act or the Exchange Act, unless specifically identified therein as being incorporated therein by reference.

(d)    Exhibits

Exhibit No.
 
Description
 
 
 
4.1
 
 
 
 
10.1
 
 
 
 
10.2
 
 
 
 
99.1
 
 
 
 
99.2
 
 
 
 
99.3
 
 







SIGNATURES


Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

                        
 
 
NII HOLDINGS, INC.
 
 
(Registrant)
 
 
 
 
 
 
Dated: December 18, 2019
 
By: /s/ SHANA C. SMITH                             
 
 
Shana C. Smith
 
 
General Counsel and Secretary





Exhibit 4.1

Execution Version



NII HOLDINGS, INC.
and
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee




FIRST SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 18, 2019









FIRST SUPPLEMENTAL INDENTURE dated as of December 18, 2019 (this “First Supplemental Indenture”), between NII Holdings, Inc., a Delaware corporation (the “Company”), and Wilmington Trust, National Association, a national banking association, as trustee (the “Trustee”).
WHEREAS, the Company and the Trustee have entered into an Indenture dated as of August 14, 2018 (the “Indenture”) in connection with the issuance of up to $115,000,000 of the Company’s 4.25% Convertible Senior Notes due 2023 (the “Notes”) (capitalized terms used herein without definition have the meanings given such terms in the Indenture);
WHEREAS, pursuant to Section 10.01 of the Indenture, the Company wishes to irrevocably elect Cash Settlement as the Settlement Method for any conversion of Notes permitted under the Indenture;
WHEREAS, the conditions set forth in the Indenture for the execution and delivery of this First Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this First Supplemental Indenture a valid supplement to the Indenture pursuant to its terms and the terms of the Indenture have been done.
NOW, THEREFORE, the parties hereto agree as follows:
Article 1
IRREVOCABLE ELECTION OF CASH SETTLEMENT
Section 1.01    Irrevocable Election of Cash Settlement. The Company hereby irrevocably elects Cash Settlement as the Settlement Method for any conversion of Notes permitted under the Indenture.
Article 2
MISCELLANEOUS.
Section 2.01    Governing Law. THIS FIRST SUPPLEMENTAL INDENTURE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).
Section 2.02    Execution in Counterparts. This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this First Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this First Supplemental Indenture as to the parties hereto and may be used in lieu of the original First Supplemental Indenture for all purposes. Signatures of the

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parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 2.03    Headings. The headings of the articles and sections of this First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 2.04    The Trustee.    In entering into this First Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct of, or affecting the liability of, the Trustee, whether or not elsewhere herein so provided. The Trustee makes no representation as to the validity, execution or sufficiency of this First Supplemental Indenture other than as to the validity of its execution and delivery by the Trustee. The Trustee assumes no responsibility for the correctness of the recitals contained herein, which shall be taken as a statement of the Company.
[Signature pages follow.]


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IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be duly executed, all as of the date first above written.

NII HOLDINGS, INC.
By:
    
Name: Shana C. Smith
Title: Vice President, General Counsel and Corporate Secretary

WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee
By:
    
Name:
Title:


    


EXHIBIT101IMAGE1.GIF                     
Exhibit 10.1
                                    
EXECUSION VERSION

ESCROW AGREEMENT


This Escrow Agreement dated this 18
th day of December, 2019 (the “Escrow Agreement”), is entered into by and between NII Holdings, Inc., a Delaware corporation (the “Company”), Wilmington Trust, National Association (with its successors or assigns, the “Trustee” and together with the Company, each a “Party” and collectively, the “Parties”) and Wilmington Trust, National Association, as escrow agent (“Escrow Agent”).

RECITALS


WHEREAS, the Company issued $115.0 million principal amount of 4.25% Convertible Senior Notes due 2023 (the “Notes”) pursuant to the terms of an Indenture dated as of August 14, 2018 between the Company and Trustee (the “Indenture”) (Capitalized terms used but not defined herein shall have the meanings set forth in the Indenture);
WHEREAS, the Company entered into an agreement to sell substantially all of its assets through the sale of one of its subsidiaries (the “Transaction”) and the consummation of the Transaction is prohibited under Article 11 of the Indenture unless the Company satisfies certain conditions; and
WHEREAS, in order to satisfy the specified conditions under the Indenture, the Company has duly elected to enter into the Escrow Agreement concurrently with the consummation of the Transaction and cause the Escrow Amount (defined in the Indenture) to be deposited into the Escrow Account (defined below) from the proceeds of the Transaction.
NOW, THEREFORE, in consideration of the premises, and further consideration of the covenants set forth hereafter, it is hereby agreed mutually as follows:

ARTICLE 1
ESCROW DEPOSIT

1.1.    Receipt of Escrow Property.

(a)Upon execution of this Escrow Agreement by each party hereto, the Company shall deposit, or shall cause to be deposited, $134,750,000 into a United States Dollar denominated account (the “Escrow Account”) established by the Escrow Agent. The Escrow Account is set forth below:


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(b)The Escrow Amount is made up of the following amounts:

(i)
which is equal to the sum of (A) the aggregate principal amount of the Notes outstanding, (B) accrued and unpaid interest on the Notes (to but not including) the date hereof; (C) the maximum amount of interest payable to holders of the Notes through the Maturity Date (the “Note Escrow Amount”); and

(ii)
which is equal to the sum of any fees to be owed to the Escrow Agent, the Trustee and their respective agents and counsel through the Maturity Date (including those incurred in connection with the negotiation and delivery of this Agreement), including a reserve amount for the payment of additional amounts that may become due to the Escrow Agent, the Trustee, or their respective agents and counsel under this Agreement or the Indenture, as applicable (the “Expense Reserve Amount”). The Expense Reserve Amount shall be in addition to (and shall not in any way limit) the obligations that the Company may have under this Escrow Agreement or the Indenture to the Trustee or to the Escrow Agent.
  
(c)The Escrow Agent will hold the Escrow Amount in the Escrow Account (the “Escrow Property”), in escrow upon the terms and conditions set forth in this Escrow Agreement and shall not disburse funds from the Escrow Account except as provided herein. The Escrow Agent may, in its discretion, set up sub-accounts for purposes of administering this Agreement.

1.2.    Investment of Funds.

(a)    The Escrow Agent shall invest the Escrow Property in accordance with the written instructions provided by the Company (signed by an individual designated by the Company on Exhibit B-1) in one of the investments identified on Schedule I (each a “Permitted Investment”). In the absence of written investment instructions from the Company, the Escrow Agent shall hold the Escrow Property un-invested, without interest thereon. The Escrow Agent is hereby initially directed by the Company to invest all the Escrow Property in the Permitted Investment identified as (1) on Schedule I. The Escrow Agent shall invest the Escrow Amount on the date of deposit, provided that it is received on or before 11:00 a.m. New York City time. Any Escrow Deposit received by the Escrow Agent after 11:00 a.m. New York City time shall be treated as if received on the following business day. For the avoidance of doubt, any investment earnings and income on the Escrow Property shall become part of the Escrow Property, and shall be disbursed in accordance with Section 1.3 below. The Escrow Agent shall make no disbursement, investment or other use of funds until and unless it has collected funds. The Escrow Agent shall not be liable for collection items until such proceeds have been received or the Federal Reserve has given the Escrow Agent credit for the funds.

(b)    The Escrow Agent is hereby authorized and directed to sell or redeem any such investments as it deems necessary to make any payments or distributions required under this Escrow Agreement. The Escrow Agent shall have no responsibility or liability for any loss which may result from any investment or sale of investment made pursuant to this Escrow Agreement. The Escrow Agent is hereby authorized, in making or disposing of any investment permitted by this Escrow Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or any such affiliate is acting as agent of the Escrow Agent or for any third person or dealing as principal for its own account. The Parties acknowledge that the Escrow Agent is not providing investment supervision, recommendations, or advice.

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1.3.    Disbursements.
(a)The Escrow Agent is hereby directed by the Parties to distribute the Escrowed Property in the following manner:

(i)    from the Note Escrow Amount, as specified by the Company in the Officer’s Certificate and Written Direction, a form of which is attached hereto as Exhibit A-1 (a “Company Written Direction”), delivered to the Trustee and the Escrow Agent two business days prior to the requested distribution date in order to satisfy any of the Company’s monetary obligations under the Indenture to the Holders of the Notes, including payment on the Notes in connection with a Fundamental Change Repurchase in accordance with Article 15 of the Indenture or in connection with a private repurchase or tender offer of the Notes, as described in Section 2.10 of the Indenture;

(ii)    if an Event of Default (defined in the Indenture) has occurred and is continuing, as specified by Trustee in a Trustee Written Direction, a form of which is attached hereto as Exhibit A-2 (a “Trustee Written Direction”), delivered two business days prior to the requested distribution date, in order to satisfy the Company’s monetary obligations under the Indenture for application pursuant to Section 6.05 of the Indenture; or
 
(iii)    the remaining funds in the Escrow Account, including any Expense Reserve Amount, upon the satisfaction in full of the Company’s monetary obligations under the Indenture and this Escrow Agreement and its delivery to the Trustee of an Officer’s Certificate and Opinion of Counsel required under the Indenture, as specified by the Company in the Final Release Written Direction, a form of which is attached hereto as Exhibit A-3 (a “Final Release Written Direction”) delivered to the Trustee and the Escrow Agent at least two business days prior to the requested distribution date.

The term “Written Direction” may refer, variably, to a Company Written Direction, Trustee Written Direction or Final Release Written Direction, as the context may require). For the avoidance of doubt, the Company may not use the Expense Reserve Amount to satisfy its obligations to the Noteholders.

(b)In the event the Escrow Agent makes any payment to any other party pursuant to this Escrow Agreement and for any reason such payment (or any portion thereof) is required to be returned to the Escrow Account or another party or is subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a receiver, trustee or other party under any bankruptcy or insolvency law, other federal or state law, common law or equitable doctrine, then the recipient shall hold such amounts in trust and shall repay to the Escrow Agent upon written request the amount so paid to it.

(c)The Escrow Agent shall, in its sole discretion, comply with judgments or orders issued or process entered by any court with respect to the Escrow Property, including without limitation any attachment, levy or garnishment, without any obligation to determine such court's jurisdiction in the matter and in accordance with its normal business practices. If the Escrow Agent complies with any such judgment, order or process, then Escrow Agent shall not be liable to either Party or any other person by reason of such compliance, regardless of the final disposition of any such judgment, order or process.

(d)Each Party understands and agrees that the Escrow Agent shall have no obligation or duty to act upon a Written Direction delivered to the Escrow Agent for the disbursement of Escrow Property under

3



this Escrow Agreement if such Written Direction is not (i) in writing, (ii) signed by, in the case of the Company, any individual designated by the Company on Exhibit B-1 hereto or, in the case of Trustee, any individual designated by Trustee on Exhibit B-2 hereto (in each case, each such individual an “Authorized Representative” of such Party), and (iii) delivered to, and able to be authenticated by, the Escrow Agent in accordance with Section 1.5.

(e)Upon request, the Escrow Agent will furnish monthly statements to each Party setting forth the activity in the Escrow Account.

(f)A party may specify in a Written Direction whether the Escrow Property shall be disbursed by way of wire transfer, check or account to account transfer. If the written notice for the disbursement of funds does not so specify the disbursement means, the Escrow Agent may disburse the Escrow Property by any means chosen by the Escrow Agent.


1.4.    Written Direction and Other Instruction.

(a)With respect to any Written Direction or any other notice, direction or other instruction required to be delivered by a Party to the Escrow Agent under this Escrow Agreement, the Escrow Agent is authorized to follow and rely upon any and all such instructions given to it from time to time if the Escrow Agent believes, in good faith, that such instruction is genuine and to have been signed by an Authorized Representative of such Party. The Escrow Agent shall have no duty or obligation to verify that the person who sent such instruction is, in fact, a person duly authorized to give instructions on behalf of a Party, other than to verify that the signature of the Authorized Representative on any such instruction appears to be the signature of such person. Each Party acknowledges and agrees that it is fully informed of the protections and risks associated with the various methods of transmitting instructions to the Escrow Agent, and that there may be more secure methods of transmitting instructions other than the method selected by such Party. The Escrow Agent shall have no responsibility or liability for any loss which may result from:
 
(i)    any action taken or not taken by the Escrow Agent in good faith reliance on any such signatures or instructions;

(ii)    as a result of a Party’s reliance upon or use of any particular method of delivering instructions to the Escrow Agent, including the risk of interception of such instruction and misuse by third parties; or

(iii) any officer or Authorized Representative of a Party named in an incumbency certificate, Exhibit B-1 or Exhibit B-2 delivered hereunder prior to actual receipt by the Escrow Agent of a more current incumbency certificate or an updated Exhibit B-1 or Exhibit B-2 and a reasonable time for the Escrow Agent to act upon such updated or more current certificate or Exhibit.

(b)The Company may, at any time, update Exhibit B-1 and Trustee may, at any time, update Exhibit B-2 by signing and submitting to the Escrow Agent an updated Exhibit. Any updated Exhibit shall not be effective unless the Escrow Agent countersigns a copy thereof. The Escrow Agent shall be entitled to a reasonable time to act to implement any changes on an updated Exhibit.

1.5.    Delivery and Authentication of Written Direction.

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(a)A Written Direction must be delivered to the Escrow Agent by one of the delivery methods set forth in Section 4.3.

(b)Each Party and the Escrow Agent hereby agree that the following security procedures will be used to verify the authenticity of a Written Direction delivered by any Party to the Escrow Agent under this Escrow Agreement:

(i)    The Written Direction must include the name and signature of the person delivering the disbursement request to the Escrow Agent. The Escrow Agent will check that the name and signature of the person identified on the Written Direction appears to be the same as the name and signature of an Authorized Representative of such Party;

(ii)    With respect to a Written Direction delivered by the Company, the Escrow Agent will make a telephone call to an Authorized Representative of the Company purporting to deliver the Written Direction (which Authorized Representative may be the same as the Authorized Representative who delivered the Written Direction) at any telephone number for such Authorized Representative as set forth on Exhibit B-1 to obtain oral confirmation of delivery of the Written Direction; and

(iii)    With respect to a Written Direction delivered by the Company, if the Written Direction is sent by email to the Escrow Agent, the Escrow Agent also shall review such email address to verify that it appears to have been sent from an email address for an Authorized Representative of such Party as set forth on Exhibit B-1 or from an email address for a person authorized under Exhibit B-1 to email a Written Direction to the Escrow Agent on behalf of the Authorized Representative.

(c)Each Party acknowledges and agrees that given its particular circumstances, including the nature of its business, the size, type and frequency of its instructions, transactions and files, internal procedures and systems, the alternative security procedures offered by the Escrow Agent and the security procedures in general use by other customers and banks similarly situated, the security procedures set forth in this Section 1.5 are a commercially reasonable method of verifying the authenticity of a payment order in a Written Direction.

(d)The Escrow Agent is authorized to execute, and each Party expressly agrees to be bound by any payment order in a Written Direction issued in its name (and associated funds transfer) (i) that is accepted by the Escrow Agent in accordance with the security procedures set forth in this Section 1.5, whether or not authorized by such Party and/or (ii) that is authorized by or on behalf of such Party or for which such Party is otherwise bound under the law of agency, whether or not the security procedures set forth in this Section 1.5 were followed, and to debit the Escrow Account for the amount of the payment order. Notwithstanding anything else, the Escrow Agent shall be deemed to have acted in good faith and without negligence, gross negligence or misconduct if the Escrow Agent is authorized to execute the payment order under this Section 1.5. Any action taken by the Escrow Agent pursuant to this Section 1.5 prior to the Escrow Agent’s actual receipt and acknowledgement of a notice of revocation, cancellation or amendment of a Written Direction shall not be affected by such notice of revocation, cancellation or amendment of a Written Direction.

(e)The security procedures set forth in this Section 1.5 are intended to verify the authenticity of payment orders provided to the Escrow Agent and are not designed to, and do not, detect errors in the transmission or content of any payment order. The Escrow Agent is not responsible for detecting an error

5



in the payment order, regardless of whether either Party believes the error was apparent, and the Escrow Agent is not liable for any losses arising from any failure to detect an error.

(f)When instructed to credit or pay a party by both name and a unique numeric or alpha-numeric identifier (e.g. ABA number or account number), the Escrow Agent, and any other banks participating in the funds transfer, may rely solely on the unique identifier, even if it identifies a party different than the party named. Each Party agrees to be bound by the rules of any funds transfer network used in connection with any payment order accepted by the Escrow Agent hereunder.

(g)The Escrow Agent shall not be obliged to make any payment requested under this Escrow Agreement if it is unable to validate the authenticity of the request by the security procedures set forth in this Section 1.5. The Escrow Agent’s inability to confirm a payment order may result in a delay or failure to act on that payment order. Notwithstanding anything else in this Escrow Agreement, the Escrow Agent shall not be required to treat a payment order as having been received until the Escrow Agent has authenticated it pursuant to the security procedures in this Section 1.5 and shall not be liable or responsible for any losses arising in relation to such delay or failure to act.

1.6.    Income Tax Allocation and Reporting.
(a)Each Party agrees that, for tax reporting purposes, the Escrow Property shall be deemed to be the property of the Company and all interest and other income from investment of the Escrow Property shall, as of the end of each calendar year and to the extent required by the Internal Revenue Service, be reported as having been earned by such Party, whether or not such income was disbursed during such calendar year. Notwithstanding anything to the contrary herein, the Escrow Agent shall have no duty to prepare or file any Federal or state tax report or return with respect to the Escrow Property, except for the delivery and filing of tax information reporting forms required to be delivered and filed with the Internal Revenue Service. With respect to the preparation, delivery and filing of such required tax information reporting forms and all matters pertaining to the reporting of earnings on the Escrow Property, the Escrow Agent shall be entitled to request and receive written instructions from the Company, and the Escrow Agent shall be entitled to rely conclusively and without further inquiry on such written instructions. With respect to any other payments made under this Escrow Agreement, the Escrow Agent shall not be deemed the payer and shall have no responsibility for performing tax reporting. The Escrow Agent’s function of making such payments is solely ministerial and upon express direction of the Parties.
    
(b)Prior to the execution of this Escrow Agreement, or within two days thereafter, the Company shall provide the Escrow Agent with certified tax identification numbers by furnishing appropriate forms W-9 or W-8 and such other forms and documents that the Escrow Agent may request. The Company understands that if such tax reporting documentation is not provided and certified to the Escrow Agent, the Escrow Agent may be required by the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder, to withhold a portion of any interest or other income earned on the investment of the Escrow Property.

(c)To the extent that the Escrow Agent becomes liable for the payment of any taxes in respect of income derived from the investment of the Escrow Property, the Escrow Agent shall satisfy such liability to the extent possible from the Escrow Property. The Company shall indemnify, defend and hold the Escrow Agent harmless from and against any tax, late payment, interest, penalty or other cost or expense that may be assessed against the Escrow Agent on or with respect to the Escrow Property and the investment thereof unless such tax, late payment, interest, penalty or other expense was finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Escrow Agent. The indemnification provided

6



by this Section 1.6(c) is in addition to the indemnification provided in Section 3.1 and shall survive the resignation or removal of the Escrow Agent and the termination of this Escrow Agreement.

1.7.    Termination. Unless earlier terminated by the Parties, this Escrow Agreement shall terminate upon the satisfaction and discharge of the Indenture, at which time the Escrow Agent is authorized and directed to disburse the Escrow Property in accordance with Section 1.3 (Disbursements) and this Escrow Agreement shall be of no further force and effect, except that the provisions of Sections 1.6 (Tax Allocation and Reporting), 3.1(Indemnification) and 3.2 (Limitation of Liability) hereof shall survive termination.

ARTICLE 2
DUTIES OF THE ESCROW AGENT

2.1.    Scope of Responsibility. Notwithstanding any provision to the contrary, the Escrow Agent is obligated only to perform the duties expressly and specifically set forth in this Escrow Agreement, which shall be deemed purely ministerial in nature. Under no circumstances will the Escrow Agent be deemed to be a fiduciary to either Party or any other person under this Escrow Agreement or otherwise. The Escrow Agent will not be responsible or liable for the failure of either Party to perform in accordance with this Escrow Agreement. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument, or document other than this Escrow Agreement, whether or not an original or a copy of such agreement has been provided to the Escrow Agent; and the Escrow Agent shall have no duty to know or inquire as to the performance or nonperformance of any provision of any such agreement, instrument, or document. References in this Escrow Agreement to any other agreement, instrument, or document are for the convenience of the parties and the Escrow Agent has no duties or obligations with respect thereto. The Escrow Agent acts hereunder as escrow agent only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of the subject matter of this Escrow Agreement or any part thereof. The Escrow Agent shall have no responsibilities (except as expressly set forth herein) as to the validity, sufficiency, value, genuineness, ownership or transferability of the Escrow Property, written instructions, or any other documents in connection therewith, and will not be regarded as making nor be required to make, any representations thereto. This Escrow Agreement sets forth all matters pertinent to the escrow contemplated hereunder, and no additional obligations of the Escrow Agent shall be inferred or implied from the terms of this Escrow Agreement, any other agreement or otherwise.


2.2.    Rights of the Escrow Agent. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability or potential financial liability in the performance of its duties or the exercise of its rights under this Escrow Agreement. The Escrow Agent shall not be obligated to take any legal action or to commence any proceedings in connection with this Escrow Agreement or any property held hereunder or to appear in, prosecute or defend in any such legal action or proceedings. The Escrow Agent shall be protected in acting upon any written instruction, notice, request, waiver, consent, certificate, receipt, authorization, power of attorney or other paper or document which the Escrow Agent in good faith believes to be genuine and what it purports, to be, including, but not limited to, items directing investment or non-investment of funds, items requesting or authorizing release, disbursement or retainage of the subject matter of this Escrow Agreement and items amending the terms of this Escrow Agreement.

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2.3.    Attorneys and Agents. The Escrow Agent shall be entitled to rely on and shall not be liable for any action taken or omitted to be taken by the Escrow Agent in accordance with the advice of counsel or other professionals retained or consulted by the Escrow Agent. The Escrow Agent shall be reimbursed as set forth in Section 3.1 for any and all compensation (fees, expenses and other costs) paid and/or reimbursed to such counsel and/or professionals. The Escrow Agent may perform any and all of its duties through its agents, representatives, attorneys, custodians, and/or nominees and shall not be responsible for the acts or omissions of such agents, representatives, attorneys, custodians or nominees appointed with due care.

2.4.    Right Not Duty Undertaken. The permissive rights of the Escrow Agent to do things enumerated in this Escrow Agreement shall not be construed as duties.

ARTICLE 3
PROVISIONS CONCERNING THE ESCROW AGENT

3.1    Indemnification. The Company hereby indemnifies and defends the Escrow Agent and its directors, officers, employees and agents (collectively, the “Indemnified Parties”), and holds the Indemnified Parties harmless from any and against all liabilities, losses, actions, suits or proceedings at law or in equity, and any other expenses, fees or charges of any character or nature, (including, without limitation, attorney's fees and expenses and the costs of enforcement of this Escrow Agreement or any provision thereof), which an Indemnified Party may incur or with which it may be threatened by reason of acting as or on behalf of the Escrow Agent under this Escrow Agreement or arising out of the existence of the Escrow Account, except to the extent the same shall be have been finally adjudicated to have been directly caused by the Escrow Agent's gross negligence or willful misconduct. The Escrow Agent shall have a first lien against the Escrow Account to secure the obligations of the parties hereunder. The terms of this paragraph shall survive termination of this Escrow Agreement.

3.2.    Limitation of Liability. THE ESCROW AGENT SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THIS ESCROW AGREEMENT, THE ESCROW ACCOUNT, THE ESCROW PROPERTY, OR THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (II) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION, OR (III) ANY AMOUNT IN EXCESS OF THE VALUE OF THE ESCROW PROPERTY.

3.3.    Resignation or Removal. The Escrow Agent may, at any time, resign as escrow agent hereunder by furnishing written notice of its resignation to each Party. At such time, all fees and expenses to which the Escrow Agent is entitled shall be immediately due and payable to Escrow Agent. The Parties may remove the Escrow Agent by furnishing to the Escrow Agent a joint written notice of its removal along with payment of all fees and expenses to which it is entitled through the date of termination. Such resignation or removal, as the case may be, shall be effective thirty (30) days after the delivery of such notice or upon the earlier appointment of a successor, and the Escrow Agent’s sole responsibility thereafter shall be to safely keep the Escrow Property and to deliver the same to a successor escrow agent as shall be appointed by the Parties,

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as evidenced by a joint written notice filed with the Escrow Agent or in accordance with a court order. If the Parties have failed to appoint a successor escrow agent prior to the expiration of thirty (30) days following the delivery of such notice of resignation or removal, the Escrow Agent shall be entitled, at its sole discretion and at the expense of the Company, to (a) return the Escrow Property to the Company, or (b) petition any court of competent jurisdiction for the appointment of a successor escrow agent or for other appropriate relief, and any such resulting appointment shall be binding upon the Parties.

3.4.    Compensation and Security Interest.
    
(a) The Escrow Agent shall be entitled to compensation for its services as stated in the fee schedule attached hereto as Exhibit C, which compensation shall be paid by the Company. Such compensation is intended for the Escrow Agent's services as contemplated by this Escrow Agreement. In addition to such compensation, in the event that the conditions for the disbursement of funds under this Escrow Agreement are not fulfilled, or the Escrow Agent renders any service not contemplated in this Escrow Agreement, or there is any assignment of interest in the subject matter of this Escrow Agreement, or any material modification hereof, or if any material controversy arises hereunder, or the Escrow Agent is made a party to any litigation pertaining to this Escrow Agreement or the subject matter hereof, then the Escrow Agent shall be compensated for such extraordinary services and any services or work performed by Escrow Agent in connection with any delay, controversy, litigation or event, and reimbursed for all costs and expenses, including reasonable attorneys’ fees and expenses, occasioned by any such delay, controversy, litigation or event. If any amount due to the Escrow Agent hereunder is not paid within thirty (30) days of the date due, the Escrow Agent in its sole discretion may charge interest on such amount up to the highest rate permitted by applicable law.

(b)
As security for the due and punctual performance of any and all of the Company’s obligations under the Indenture and to the Escrow Agent hereunder, now or hereafter arising, the Company, hereby pledges, assigns and grants to the Trustee, for the benefit of the Holders (defined in the Indenture), Trustee and Escrow Agent a continuing security interest in, and a lien on and right of setoff against, the Escrow Property and all distributions thereon or additions thereto (whether such additions are the result of deposits by the Company or otherwise). If any fees, expenses or costs incurred by, or any obligations owed to, the Trustee or Escrow Agent under the Indenture or hereunder are not promptly paid when due, the Escrow Agent may reimburse the Trustee and itself therefor from the Escrow Property, and may sell, convey or otherwise dispose of any Escrow Property for such purpose. The security interest and setoff rights of the Trustee, for the benefit of the Holders, Trustee and Escrow Agent shall at all times be valid, perfected and enforceable by the Escrow Agent against the Parties and all third parties in accordance with the terms of this Escrow Agreement.

(c)
The Escrow Agent and the Parties agree that the Escrow Account is a “deposit account” within the meaning of Article 9 of the Uniform Commercial Code of the State of Delaware (the “UCC”). It is the intent of the parties to this Agreement that the Trustee shall have control over the Escrow Account within the meaning of Section 9-104 of the UCC. Upon receipt of a Trustee Written Direction, the Escrow Agent agrees to comply with written instructions or directions concerning the Escrow Account or the disposition of funds in the Escrow Account originated by the Trustee without further consent by the Company.

The terms of this Section 3.4 shall survive termination of this Escrow Agreement.

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3.5.    Disagreements. If any conflict, disagreement or dispute arises between, among, or involving any of the parties hereto concerning the meaning or validity of any provision hereunder or concerning any other matter relating to this Escrow Agreement, or the Escrow Agent is in doubt as to the action to be taken hereunder, the Escrow Agent may, at its option, refuse to act until the Escrow Agent (a) receives a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Property or (b) receives a written instruction, executed by each of the parties involved in such disagreement or dispute, in a form reasonably acceptable to the Escrow Agent, directing delivery of the Escrow Property. The Escrow Agent will be entitled to act on any such written instruction or final, non-appealable order of a court of competent jurisdiction without further question, inquiry or consent. The Escrow Agent may file an interpleader action in a state or federal court, and upon the filing thereof, the Escrow Agent will be relieved of all liability as to the Escrow Property and will be entitled to recover reasonable and documented out-of-pocket attorneys’ fees, expenses and other costs incurred in commencing and maintaining any such interpleader action. In the event the Escrow Agent receives conflicting instructions hereunder, the Escrow Agent shall be fully protected in refraining from acting until such conflict is resolved to the satisfaction of the Escrow Agent.

3.6.    Merger or Consolidation. Any corporation or association into which the Escrow Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer all or substantially all of its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which the Escrow Agent is a party, shall be and become the successor escrow agent under this Escrow Agreement and shall have and succeed to the rights, powers, duties, immunities and privileges as its predecessor, without the execution or filing of any instrument or paper or the performance of any further act.

3.7.    Attachment of Escrow Property; Compliance with Legal Orders. In the event that any Escrow Property shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered by any court order affecting the Escrow Property, the Escrow Agent is hereby expressly authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders or decrees so entered or issued, or which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction. In the event that the Escrow Agent obeys or complies with any such writ, order or decree it shall not be liable to any Party or to any other person, firm or corporation, should, by reason of such compliance notwithstanding, such writ, order or decree be subsequently reversed, modified, annulled, set aside or vacated.

3.8.    Force Majeure. The Escrow Agent shall not be responsible or liable for any failure or delay in the performance of its obligation under this Escrow Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; wars; acts of terrorism; civil or military disturbances; sabotage; epidemic; riots; interruptions; loss or malfunctions of utilities including but not limited to, computer (hardware or software), payment systems, or communications services; accidents; labor disputes; acts of civil or military authority or governmental action; it being understood that the Escrow Agent shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as reasonably practicable under the circumstances.

3.9.    Compliance with Legal Orders. The Escrow Agent shall be entitled to consult with legal counsel in the event that a question or dispute arises with regard to the construction of any of the provisions hereof,

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and shall incur no liability and shall be fully protected in acting in accordance with the advice or opinion of such counsel.

3.10.    No Financial Obligation. The Escrow Agent shall not be required to use its own funds in the performance of any of its obligations or duties or the exercise of any of its rights or powers, and shall not be require to take any action which, in the Escrow Agent's sole and absolute judgment, could involve it in expense or liability unless furnished with security and indemnity which it deems, in its sole and absolute discretion, to be satisfactory.

ARTICLE 4
MISCELLANEOUS

4.1    Successors and Assigns. This Escrow Agreement shall be binding on and inure to the benefit of each Party and the Escrow Agent and their respective successors and permitted assigns. No other persons shall have any rights under this Escrow Agreement.  No assignment of the interest of any of the Parties and the Escrow Agent shall be binding unless and until written notice of such assignment shall be delivered to the other Party and the Escrow Agent and shall require the prior written consent of the other Party and the Escrow Agent (such consent not to be unreasonably withheld).

4.2.    Escheat. Each Party is aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. The Escrow Agent shall have no liability to either Party or any other party, should any or all of the Escrow Property escheat by operation of law.

4.3.    Notices. All notices, requests, demands, and other communications required under this Escrow Agreement shall be in writing, in English, and shall be deemed to have been duly given if delivered (i) personally, (ii) by facsimile transmission with written confirmation of receipt, (iii) by overnight delivery with a reputable national overnight delivery service, (iv) by mail or by certified mail, return receipt requested, and postage prepaid, or (v) by electronic transmission; including by way of e-mail (as long as such email is accompanied by a PDF or similar version of the relevant document bearing the signature of an Authorized Representative for the Party sending the notice) with email confirmation of receipt. If any notice is mailed, it shall be deemed given five business days after the date such notice is deposited in the United States mail. If notice is given to a party, it shall be given at the address for such party set forth below. It shall be the responsibility of each Party to notify the Escrow Agent in writing of any name or address changes. In the case of communications delivered to the Escrow Agent, such communications shall be deemed to have been given on the date received by the Escrow Agent.

If to the Company:

NII Holdings, Inc.
12110 Sunset Hills Road, Suite 600
Reston, Virginia 20190
Attention: Shana C. Smith
Telephone: (703) 390-5100    
Email address: shana.smith@nii.com

If to Trustee:


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Wilmington Trust, National Association
246 Goose Lane, Suite 105
Guilford, CT 06437Attention: NII Holdings, Inc. - Escrow Account
Telephone: 203-453-4094    
Facsimile: 203-453-1183
Email address: NSUTTON@wilmingtontrust.com    

If to the Escrow Agent:

Wilmington Trust, National Association
246 Goose Lane, Suite 105
Guilford, CT 06437 Attn: NII Holdings, Inc., Escrow Account
Facsimile: 203-453-1183
Email address: NSUTTON@wilmingtontrust.com    
    

4.4.    Governing Law. This Escrow Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to any laws relating to choice of laws (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

4.5.    Venue.     Each Party and the Escrow Agent hereby consent to the exclusive personal jurisdiction of the courts located in New Castle County in the State of Delaware in the event of a dispute arising out of or under this Escrow Agreement. Each Party and the Escrow Agent hereby irrevocably waives any objection to the laying of the venue of any suit, action or proceeding and irrevocably submits to the exclusive jurisdiction of such court in such suit, action or proceeding.

4.6.    Entire Agreement. This Escrow Agreement and the exhibits hereto set forth the entire agreement and understanding of the parties related to the Escrow Property and supersedes all prior agreements and understandings, oral or written. If a court of competent jurisdiction declares a provision invalid, it will be ineffective only to the extent of the invalidity, so that the remainder of the provision and Escrow Agreement will continue in full force and effect. In the event of any direct conflict of the terms of this Escrow Agreement with the terms of the Indenture, as with respect to the rights of the Company and Trustee, the terms of the Indenture shall control and prevail; provided, in no event shall the Escrow Agent be bound by the terms of the Indenture. This Escrow Agreement is not intended to confer upon any person other than the parties hereto any rights or remedies.

4.7.    Amendment. This Escrow Agreement may be amended, modified, supplemented, superseded, rescinded, or canceled only by a written instrument executed by the Parties and the Escrow Agent; provided that Exhibit B-1 or Exhibit B-2, as applicable, may be amended at any time in accordance with Section 1.4.

4.8.    Waivers. The failure of any party to this Escrow Agreement at any time or times to require performance of any provision under this Escrow Agreement shall in no manner affect the right at a later time to enforce the same performance. A waiver by any party to this Escrow Agreement of any such condition or breach of any term, covenant, representation, or warranty contained in this Escrow Agreement, in any one or more instances, shall neither be construed as a further or continuing waiver of any such condition or

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breach nor a waiver of any other condition or breach of any other term, covenant, representation, or warranty contained in this Escrow Agreement.

4.9.    Interpretation. Section headings of this Escrow Agreement have been inserted for convenience of reference only and shall in no way restrict or otherwise modify any of the terms or provisions of this Escrow Agreement. Unless otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Any references to an Exhibit is a reference to an Exhibit of this Escrow Agreement.

4.10.    Counterparts. This Escrow Agreement may be executed in one or more counterparts, each of which when executed shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument.

4.11.    Waiver of Jury Trial. EACH OF THE PARTIES HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN RESOLVING ANY CLAIM OR COUNTERCLAIM RELATING TO OR ARISING OUT OF THIS ESCROW AGREEMENT.



[The remainder of this page left intentionally blank.]


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EXHIBIT101IMAGE2.GIF                             


IN WITNESS WHEREOF, this Escrow Agreement has been duly executed as of the date first written above.

NII HOLDINGS, INC.

By:     
Name:
Title:
Date:

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee

By:     
Name:
Title:
Date:


WILMINGTON TRUST, NATIONAL ASSOCIATION, as Escrow Agent

By:     
Name:
Title:
Date:




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EXECUTION VERSION EXHIBIT102IMAGE1.JPG

Exhibit 10.2


ESCROW AGREEMENT

among

AMÉRICA MÓVIL, S.A.B. DE C.V.,

AS PURCHASER,

NII HOLDINGS, INC.,

AS PARENT

and

CITIBANK, N.A.,

AS ESCROW AGENT




Dated as of December 18, 2019






ESCROW AGREEMENT (this “Agreement”), dated as of December 18, 2019, by and among América Móvil, S.A.B. de C.V., a corporation (sociedad anónima bursátil de capital variable) existing under the laws of Mexico (“Purchaser”), NII Holdings, Inc., a Delaware corporation (“Parent”), and Citibank, N.A., a national banking association organized and existing under the laws of the United States of America (“Citibank”) and acting through its Agency and Trust Division and solely in its capacity as escrow agent under this Agreement, and any successors appointed pursuant to the terms hereof (Citibank in such capacity, the “Escrow Agent”). Purchaser and Parent (on behalf of itself and on behalf of Seller (as defined below)) are sometimes collectively referred to herein as the “Interested Parties”.

WHEREAS, pursuant to the Purchase Agreement, dated as of March 18, 2019, as amended by Amendment No.1 to the Purchase Agreement, dated as of April 17, 2019, and Amendment No.2 to the Purchase Agreement, dated as of June 26, 2019 (as it may be further amended from time to time in accordance with its terms, the “Purchase Agreement”), by and among Purchaser, NII International Holdings S.à r.l., a private limited liability company (société à responsabilité limitée) organized under the laws of the Grand Duchy of Luxembourg having its registered office at 6, rue Eugène Ruppert, L-2453 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies Register under the number B 149229 (“Seller”), Parent and AI Brazil Holdings B.V., a corporation existing under the laws of The Netherlands, the Interested Parties thereto have agreed to establish an escrow arrangement for the purposes set forth therein, and to secure Parent’s indemnification obligations under the Purchase Agreement.

WHEREAS, the Interested Parties wish to appoint Citibank as Escrow Agent, and Citibank is willing to accept such appointment and to act as Escrow Agent, in each case upon the terms and conditions of this Agreement.

WHEREAS, capitalized terms used in this Agreement and not otherwise defined herein have the meanings given to them in the Purchase Agreement; provided, however, that the Escrow Agent shall not be deemed to have any knowledge of or duty to ascertain the meaning of any capitalized term not otherwise defined in this Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby irrevocably acknowledged, the parties hereto agree as follows:

1.    Establishment of Escrow Account. On the Closing Date, Purchaser shall deposit or shall cause to be deposited with the Escrow Agent in immediately available funds the amount of $30,000,000 (the “Escrow Deposit”, and together with any investment income or proceeds received from the investment thereof from time to time pursuant to Section 3 below, collectively, the “Escrow

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Property”) to the account designated in Section 12 (c) of this Agreement (the “Escrow Account”), and the Escrow Agent shall hold the Escrow Deposit in the Escrow Account.

2.    Claims and Payment; Release from Escrow.
    
(a)    Disbursements for Claims.     

(i)    At any time and from time to time on or prior to 5:00 p.m. New York time on June 17, 2021 (such date, the “Escrow Termination Date”), Purchaser may make a claim for indemnification pursuant to Article 10 of the Purchase Agreement (a “Claim”) by delivering a written notice (a “Claim Notice”) to Parent and the Escrow Agent (A) listing separately and describing in reasonable detail (to the extent known) the nature and basis of each specific and individual Claim and the dollar amount or estimated dollar amount of Damages sought with respect to each such Claim (each a “Claim Amount”) (which description, for the avoidance of doubt, may be amended by Purchaser after the date of such Claim Notice, but prior to any resolution of such Claim or release of Escrow Property with respect thereto, upon written notice to Parent and the Escrow Agent) and (B) requesting disbursement of the relevant Claim Amounts from the Escrow Account.

(ii)    Parent may contest any Claim specified in a Claim Notice (or any portion thereof) by delivering a written notice (a “Disagreement Notice”) to the Escrow Agent and Purchaser, which Disagreement Notice must be received by the Escrow Agent within thirty (30) days of the Escrow Agent’s receipt of a Claim Notice (the “Response Period”), setting forth in reasonable detail the basis for Parent’s disagreement with such Claim and the dollar amount of any such Claim that is not in dispute (the “Agreed Amount”), it being understood and agreed that any portion of a Claim Amount that is not specified by the Parent in such Disagreement Notice to be an Agreed Amount shall be deemed to be disputed by Parent. The Interested Parties shall provide to the Escrow Agent a Joint Release Notice (as defined below) instructing the Escrow Agent to release to Purchaser from the Escrow Account the Agreed Amount, or if the then-balance of the Escrow Account is less than such Agreed Amount, the balance of the Escrow Account, and such instruction shall specify the Agreed Amount to be so released. If the Escrow Agent does not receive from Parent a Disagreement Notice prior to the expiration of the Response Period, then the Claim Amount shall be deemed to be agreed by the Parent, and the Escrow Agent shall promptly (and in any event with two (2) Business Days after the expiration of the Response Period) release from the Escrow Account to Purchaser an amount equal to the Claim Amount for such Claim or, if the then-remaining balance of the Escrow Account is less than such amount, the balance of the Escrow Account. Any release of Escrow Property to the Purchaser shall be made by wire transfer of immediately available funds to the account of Purchaser set forth on Schedule D attached hereto, or to an account or accounts designated in writing by Purchaser in the Claim Notice. If the Escrow

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Agent receives a Disagreement Notice from the Parent in accordance with this Section 2(a)(ii) disputing the Claim, or the amount or any portion thereof (such amount, the “Disputed Amount”), the Escrow Agent shall not release the Disputed Amount, except as provided in Section 2(a)(iii) or Section 2(b).

(iii)    Either Purchaser or Parent may deliver to the Escrow Agent, at any time, a certified copy of a final non-appealable judgment of a court of competent jurisdiction or a final determination by an arbitration or like panel or an agreement regarding a resolution of a Claim and/or the Disputed Amount of any Claim (a “Judgment”) awarding an amount to be paid out of the Escrow Account to Purchaser or Parent (on behalf of Seller), as applicable, with respect to such Claim, together with written instructions signed by an Authorized Person for the presenting party (with a copy sent simultaneously to the other Interested Party) containing the amount to be paid and appropriate payment instructions to be utilized by the Escrow Agent. The Escrow Agent shall be entitled to receive and may conclusively rely upon a written opinion of counsel from and at the expense of the presenting party to the effect that such Judgment is final and non-appealable and from a court of competent jurisdiction or an arbitration or like panel with proper authority for purposes of this Section 2(a)(iii). Within two (2) Business Days after receipt of the Judgment and accompanying payment instructions and opinion of counsel, the Escrow Agent shall disburse the amount required to be paid by such Judgment from the Escrow Account to the recipient as specified in such payment instructions.

(b)    Distributions of Escrow Property.

(i)    Purchaser and Parent may at any time jointly deliver to the Escrow Agent a certificate executed by an Authorized Person (as defined below) of each of Purchaser and Parent directing the Escrow Agent to disburse all or a portion of the Escrow Property, as applicable (each, a “Joint Release Notice”). Within two (2) Business Days after the date on which the Escrow Agent receives an executed Joint Release Notice, the Escrow Agent shall disburse the portion of the amount in the Escrow Account set forth in the Joint Release Notice to the persons or accounts designated on such Joint Release Notice.

(ii)    No later than two (2) Business Days after the Escrow Termination Date, the Escrow Agent shall release to Parent (on behalf of Seller), by wire transfer of immediately available funds to the account of Parent set forth on Schedule D attached hereto, or to an account or accounts designated in writing by Parent to the Escrow Agent prior to the Escrow Termination Date, that amount equal to all of the remaining funds held in the Escrow Account less the sum of (A) the amount(s), if any, that have been paid to the Purchaser or its designees from the Escrow Account, and (B) any Disputed Amount and the amount(s), if any, of any pending and unresolved Claim(s) specified in any Claim Notice(s) received by the Escrow Agent from the Purchaser in

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accordance with this Agreement on or prior to the Escrow Termination Date, including any Claim Amount set forth in any Claim Notice received by the Escrow Agent on or prior to the Escrow Termination Date, for which the Response Period has not yet expired, which amount(s) referenced in this clause (B) shall be retained by the Escrow Agent in the Escrow Account until resolution of the applicable Claim and disbursement of such amount(s) in accordance with Section 2(a)(iii) or Section 2(b)(i). After the Escrow Termination Date, as any Claim is resolved and/or paid, the Purchaser and Parent shall deliver to the Escrow Agent a Joint Release Notice for any unused Disputed Amount(s) and/or Claim Amount(s) previously allocated to such Claim, if any.
(c)    Security Procedure for Funds Transfers. In the event a Joint Release Notice or other funds transfer request pursuant to this Section 2 is delivered to the Escrow Agent, in accordance with this Agreement, whether in writing, by telecopier or otherwise, the Escrow Agent may seek confirmation of such instruction by telephone call back to the Authorized Person. If the Escrow Agent is unable to verify the instructions, or is not satisfied with the verification it receives, it will not execute the instruction until all such issues have been resolved. The persons and telephone numbers for callbacks may be changed only in writing actually received and acknowledged by the Escrow Agent.

3.    Investment of Funds.

(a)    Initially, until otherwise jointly directed in writing by the Interested Parties, the Escrow Agent shall invest and reinvest the Escrow Deposit and the proceeds thereof in an interest-bearing deposit account, insured up to the applicable limits by the Federal Deposit Insurance Corporation. The Interested Parties acknowledge that the initial interest rate is subject to change from time to time and shall be reflected in the monthly statement provided to the Interested Parties. The Escrow Agent shall invest the Escrow Deposit on the date of deposit, provided that it is received on or before 11:00 a.m. New York City time. Any Escrow Deposit received by the Escrow Agent after 11:00 a.m. New York City time shall be treated as if received on the following Business Day. For purposes of this Agreement, “Business Day” shall mean any day other than a Saturday, Sunday or any other day on which the Escrow Agent located at the notice address set forth below is authorized or required by law or executive order to remain closed.

(b)    The Escrow Agent shall send an account statement to each of the Interested Parties on a monthly basis reflecting activity in the Escrow Account for the preceding month, including receipt, investment, reinvestment and disbursement of the Escrow Property.

(c)    The Escrow Agent is hereby authorized and directed to sell or redeem any such investments as it deems necessary to make any payments or distributions required under this Agreement. The Escrow Agent shall have no responsibility or liability for any loss in the value of any investment made pursuant to this Agreement, or for any loss, cost or penalty resulting from any

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sale or liquidation of the Escrow Property, provided that the Escrow Agent has made such investment, sale or liquidation in accordance with the terms and conditions of this Agreement. The Escrow Agent is hereby authorized to execute purchases and sales of investments through the facilities of its own trading or capital markets operations or those of any affiliated entity. The Escrow Agent does not have a duty nor will it undertake any duty to provide investment advice.

4.    Tax Matters.

(a)    The Interested Parties agree any earnings or proceeds received on or distributions of earnings or proceeds from the Escrow Property during a calendar year period shall be treated as the income of Parent and shall be reported on an annual basis by the Escrow Agent on the appropriate United States Internal Revenue Service (“IRS”) Form 1099 (or IRS Form 1042-S), as required pursuant to the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations thereunder. The Interested Parties and the Escrow Agent agree that the Escrow Agent will not be responsible for providing tax reporting and withholding for payments which are for compensation for services performed by an employee or independent contractor.

(b)    Escrow Agent shall distribute, on or before the tenth (10th) calendar day of each calendar year, so long as any portion of the Escrow Deposit remains in the Escrow Account, to Parent, subject to instructions provided by Parent to Escrow Agent and delivered to Escrow Agent no later than two (2) Business Days prior to such tenth (10th) calendar day, to the account of Parent set forth on Schedule D (or such other account or accounts designated by Parent in writing), an amount equal to the net taxable income earned on the investment of the Escrow Deposit during the preceding calendar year multiplied by an assumed tax rate of 25.74% (the “Applicable Rate”). Escrow Agent shall be responsible only for federal income tax reporting to the Internal Revenue Service with respect to income earned on the Escrow Deposit. Immediately before the distribution of any of the Escrow Deposit to Purchaser pursuant to Section 2, Escrow Agent shall distribute to Parent (in the same manner as specified above, and for the avoidance of doubt, subject to instructions received by the Escrow Agent from Parent specifying the amount to be released) an amount equal to the net taxable income earned on the investment of the Escrow Deposit and credited to the Escrow Account multiplied by the Applicable Rate. The Escrow Agent shall be under no duty or obligation to calculate or determine the amount of interest to be released to Parent pursuant to this Section 4(b).

(c)    If IRS imputed interest requirements apply, the Interested Parties are solely responsible to inform the Escrow Agent, provide the Escrow Agent with all imputed interest calculations, and direct the Escrow Agent to disburse imputed interest amounts. The Escrow Agent shall rely solely on such provided calculations and information and shall have no responsibility for the accuracy or completeness of any such calculations or information or for the failure of the Interested Parties to provide such calculations or information.

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(d)    The Interested Parties shall upon the execution of this Agreement provide the Escrow Agent with a duly completed and properly executed IRS Form W-9 or applicable IRS Form W-8, in the case of a non-U.S. person, for each payee, together with any other documentation and information requested by the Escrow Agent in connection with the Escrow Agent’s tax reporting obligations under the Code and the regulations thereunder. With respect to the Escrow Agent’s tax reporting obligations under the Code, the Foreign Account Tax Compliance Act and the Foreign Investment in Real Property Tax Act and any other applicable law or regulation, the Interested Parties understand that, in the event valid U.S. tax forms or other required supporting documentation are not provided to the Escrow Agent, the Escrow Agent may be required to withhold tax from the Escrow Property and report account information on any earnings, proceeds or distributions from the Escrow Property.

(e)    Should the Escrow Agent become liable for the payment of taxes, including withholding taxes relating to any funds, including interest and penalties thereon, held by it pursuant to this Agreement or any payment made hereunder, the Escrow Agent shall satisfy such liability to the extent possible from the Escrow Property. The Interested Parties agree, jointly and severally, to indemnify and hold the Escrow Agent harmless pursuant to Section 6(c) hereof from any liability or obligation on account of taxes, assessments, interest, penalties, expenses and other governmental charges that may be assessed or asserted against the Escrow Agent.

(f)    The Escrow Agent’s rights under this Section shall survive the termination of this Agreement or the resignation or removal of the Escrow Agent.
  
5.    Concerning the Escrow Agent.

(a)    Escrow Agent Duties. Each Interested Party acknowledges and agrees that (i) the duties, responsibilities and obligations of the Escrow Agent shall be limited to those expressly set forth in this Agreement, each of which is administrative or ministerial (and shall not be construed to be fiduciary) in nature, and no duties, responsibilities or obligations shall be inferred or implied, (ii) the Escrow Agent shall not be responsible for any of the agreements referred to or described herein (including without limitation the Purchase Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, and (iii) the Escrow Agent shall not be required to expend or risk any of its own funds to satisfy payments from the Escrow Property hereunder.

(b)    Liability of Escrow Agent. The Escrow Agent shall not be liable for any damage, loss or injury resulting from any action taken or omitted to be taken by it in good faith except to the extent that the Escrow Agent’s fraud, gross negligence or willful misconduct was the

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cause of any such damage, loss or injury (as finally adjudicated by a court of competent jurisdiction). In no event shall the Escrow Agent be liable for indirect, incidental, consequential, punitive or special losses or damages (including but not limited to lost profits), regardless of the form of action and whether or not any such losses or damages were foreseeable or contemplated. The Escrow Agent shall be entitled to rely upon any instruction, notice, request or other instrument delivered to it in accordance with the terms of this Agreement without being required to determine the authenticity or validity thereof, or the truth or accuracy of any information stated therein. The Escrow Agent may act in reliance upon any signature believed by it in good faith to be genuine and may assume that any person purporting to make any statement, execute any document, or send any instruction in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent may consult with counsel satisfactory to it and the opinion or advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith and in accordance with the opinion and advice of such counsel. The Escrow Agent may perform any and all of its duties through its agents, representatives, attorneys, custodians and/or nominees. The Escrow Agent shall not incur any liability for not performing any act or fulfilling any obligation hereunder by reason of any occurrence beyond its control (including, without limitation, any provision of any present or future law or regulation or any act of any governmental authority, any act of God or war or terrorism, or the unavailability of the Federal Reserve Bank wire services or any electronic communication facility).

(c)     Reliance on Orders. The Escrow Agent is authorized to comply with final orders issued or process entered by any court with respect to the Escrow Property, without determination by the Escrow Agent of such court's jurisdiction in the matter. If any portion of the Escrow Property is at any time attached, garnished or levied upon under any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, then and in any such event, the Escrow Agent is authorized to rely upon and comply with any such order, writ, judgment or decree which it is advised by legal counsel is binding upon it without the need for appeal or other action; and if the Escrow Agent complies with any such order, writ, judgment or decree, it shall not be liable to any of the Interested Parties hereto or to any other person or entity by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated. To the extent permitted by applicable law, the Escrow Agent shall send a copy of any such order, writ, judgment or decree to each of the Interested Parties promptly after receipt thereof.

6.    Compensation, Expense Reimbursement and Indemnification.

(a)    Compensation. Each of Purchaser and Parent covenants and agrees to pay fifty percent (50%) of the Escrow Agent’s compensation specified in Schedule A, including all reasonable and documented out-of-pocket expenses incurred by the Escrow Agent in the

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performance of its role under this Agreement (including, but not limited to, any reasonable and documented attorney’s fees incurred in connection with the preparation and negotiation of this Agreement, which shall be due and payable upon the execution of this Agreement).

(b)    Security and Offset. The Interested Parties hereby grant to the Escrow Agent a first lien upon, and right of offset against, the Escrow Property with respect to any fees or expenses due to the Escrow Agent hereunder (including any claim for indemnification hereunder). In the event that any fees or expenses, or any other obligations owed to the Escrow Agent (or its counsel) are not paid to the Escrow Agent within thirty (30) calendar days following the presentment of an invoice for the payment of such fees and expenses or the demand for such payment, then the Escrow Agent may, without further action or notice, pay such fees and expenses from the Escrow Property and may sell, convey or otherwise dispose of any Escrow Property for such purpose. The Escrow Agent may in its sole discretion withhold from any distribution of the Escrow Property an amount of such distribution it reasonably believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Escrow Agent is entitled to hereunder.

(c)    Indemnification. Each of the Interested Parties covenants and agrees, jointly and severally, to indemnify the Escrow Agent and its employees, officers, directors, affiliates, and agents (each, an “Indemnified Party”) for, hold each Indemnified Party harmless from, and defend each Indemnified Party against, any and all claims, losses, actions, liabilities, costs, damages and expenses of any nature incurred by any Indemnified Party, arising out of or in connection with this Agreement or with the administration of its duties hereunder, including but not limited to reasonable and documented attorney’s fees, costs and expenses, except to the extent such loss, liability, damage, cost or expense shall have been finally adjudicated by a court of competent jurisdiction to have resulted solely from the Indemnified Party's own fraud, gross negligence or willful misconduct (collectively, “Indemnified Losses”). Without altering or limiting the joint and several obligations of the Interested Parties to the Escrow Agent in this Section 6(c), each of Purchaser and Parent hereby agree between themselves that each shall bear fifty percent (50%) of any Indemnified Losses; provided, solely as between the Interested Parties, that if the actions of either Purchaser or Parent are determined among the Interested Parties or by a court of competent jurisdiction through a final non-appealable order to be the primary cause of any Indemnified Losses, such party shall be responsible for such additional portion of such payment obligations as shall be agreed among the Interested Parties or determined by said court of competent jurisdiction through its final order, as applicable. The foregoing indemnification and agreement to hold harmless shall survive the termination of this Agreement and the resignation or removal of the Escrow Agent.

7.    Dispute Resolution. In the event of any disagreement among any of the Interested Parties to this Agreement, or between any of them and any other person, resulting in adverse claims or demands being made with respect to the subject matter of this Agreement, or in the event that

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the Escrow Agent, in good faith, is in doubt as to any action it should take hereunder, the Escrow Agent may, at its option, refuse to comply with any claims or demands and refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, the Escrow Agent shall not be liable in any way or to any person for its failure or refusal to act, and the Escrow Agent shall be entitled to continue to so refuse to act and refrain from acting until the Escrow Agent shall have received (i) a final non-appealable order, judgment or decree by a court of competent jurisdiction, or (ii) a written agreement executed by each of the Interested Parties involved in such disagreement, in which case the Escrow Agent shall be authorized to disburse the Escrow Property in accordance with such final court order, judgment, decree or agreement. The Escrow Agent shall be entitled to receive (from and at the expense of the presenting party) an opinion of counsel to the effect that any order, judgment or decree is final and not subject to appeal. The Escrow Agent shall have the option, after thirty (30) calendar days’ notice to the Interested Parties of its intention to do so, to petition (by means of filing an action in interpleader or any other appropriate method) any court of competent jurisdiction, for instructions with respect to any dispute or uncertainty, and to the extent required or permitted by law, pay into such court the Escrow Property for holding and disposition in accordance with the instructions of such court. The costs and expenses (including reasonable and documented attorneys’ fees and expenses) incurred by the Escrow Agent in connection with such proceeding shall be paid by, and be the joint and several obligation of, the Interested Parties.

8.    Entire Agreement; Exclusive Benefit. This Agreement constitutes the entire agreement between the parties and sets forth in its entirety the obligations and duties of the Escrow Agent with respect to the Escrow Property. This Agreement is for the exclusive benefit of the parties to this Agreement and their respective permitted successors, and shall not be deemed to give, either expressly or implicitly, any legal or equitable right, remedy, or claim to any other entity or person whatsoever. No party may assign any of its rights or obligations under this Agreement without the prior written consent of the other parties.

9.    Resignation and Removal.

(a)    The Interested Parties may remove the Escrow Agent at any time, with or without cause, by giving to the Escrow Agent thirty (30) calendar days’ prior written notice of removal signed by an Authorized Person of each of the Interested Parties. The Escrow Agent may resign at any time by giving to each of the Interested Parties thirty (30) calendar days’ prior written notice of resignation.

(b)    Within thirty (30) calendar days after giving the foregoing notice of removal to the Escrow Agent or within thirty (30) calendar days after receiving the foregoing notice of resignation from the Escrow Agent, the Interested Parties shall appoint a successor escrow agent

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and give notice of such successor escrow agent to the Escrow Agent. If a successor escrow agent has not accepted such appointment by the end of such 30-day period, the Escrow Agent may either (A) safe keep the Escrow Property until a successor escrow agent is appointed, without any obligation to invest the same or continue to perform under this Agreement, or (B) apply to a court of competent jurisdiction for the appointment of a successor escrow agent or for other appropriate relief.

(c)    Upon receipt of notice of the identity of the successor escrow agent, the Escrow Agent shall either deliver the Escrow Property then held hereunder to the successor escrow agent, less the Escrow Agent’s fees, costs and expenses, or hold such Escrow Property (or any portion thereof) pending distribution, until all such fees, costs and expenses are paid to it. Upon delivery of the Escrow Property to the successor escrow agent, the Escrow Agent shall have no further duties, responsibilities or obligations hereunder.

10.    Governing Law; Jurisdiction; Waivers.

(a)    This Agreement is governed by and shall be construed and interpreted in accordance with the laws of the State of New York without giving effect to the conflict of laws principles thereof. Subject to Section 10(b) hereof (solely as between the Interested Parties), for any proceedings commenced regarding this Agreement, the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the federal courts located in the Borough of Manhattan, City, County and State of New York, or if such court declines to accept jurisdiction over a particular matter, in any state court located in the Borough of Manhattan, City, County and State of New York. The parties irrevocably submit to the jurisdiction of such courts for the determination of all issues in such proceedings and irrevocably waive any objection to venue or inconvenient forum for any proceeding brought in any such court. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY PROCEEDING RELATING TO THIS AGREEMENT.

(b)    Solely as between the Interested Parties, in the event that the Interested Parties elected for arbitration in accordance with Section 13.2(b) of the Purchase Agreement, the Interested Parties shall submit any proceedings commenced regarding this Agreement to be finally settled by binding arbitration administered by the same tribunal in the same seat and place of arbitration as selected pursuant to Section 13.2(b) of the Purchase Agreement. In no event shall the Escrow Agent be required to submit to arbitration for any proceedings commenced regarding this Agreement, it being understood and agreed that any such arbitration proceedings shall be solely between the Interested Parties.

11.    Representations and Warranties. Each of the Interested Parties represents and warrants that it has all requisite corporate power and authority to execute and deliver this Agreement

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and to perform its obligations hereunder; and this Agreement has been duly approved by all necessary action and (assuming the due authorization, execution and delivery by the other parties hereto) constitutes its valid and binding agreement enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting the enforcement or creditors’ rights and subject to general equity principles.

12.    Notices; Instructions.

(a)    Any notice, requests, instruction and other communications to the Escrow Agent hereunder shall be in writing in English, and may be sent (i) by secure file transfer or (ii) by electronic mail with a scanned attachment thereto of an executed notice or instruction, and shall be effective upon actual receipt by the Escrow Agent in accordance with the terms hereof. Any notice or communications to any other parties hereto shall be in writing in English and shall be deemed to have been duly given (i) at the time of delivery, if delivered personally, (ii) on the day of transmission, if sent by facsimile or electronic transmission and written confirmation of receipt is obtained promptly after completion of the transmission, which confirmation shall promptly be delivered by the recipients if so requested, (iii) when received by overnight delivery with a reputable national overnight delivery service, or (iv) five (5) Business Days after the date any notice is deposited with the United States Postal Service, if such notice is sent by mail or by certified mail, return receipt requested and postage prepaid. Any notice or instruction must be executed by an authorized person of an Interested Party designated on Schedule B and Schedule C attached hereto (the person(s) so designated from time to time, the “Authorized Persons”). Each of the applicable persons designated on Schedule B and Schedule C attached hereto have been duly appointed to act as Authorized Persons hereunder and individually have full power and authority to execute any notices or instructions, to amend, modify or waive any provisions of this Agreement, and to take any and all other actions permitted under this Agreement, all without further consent or direction from, or notice to, it or any other party. Any notice or instruction to the Escrow Agent by secure file transfer or by electronic mail must be originated from a corporate domain. Any change in designation of Authorized Persons shall be provided by written notice, signed by an Authorized Person of the applicable Interested Party, and actually received and acknowledged by the Escrow Agent. Any communication from the Escrow Agent that the Escrow Agent deems to contain confidential, proprietary, and/or sensitive information shall be encrypted in accordance with the Escrow Agent’s internal procedures. Each of Purchaser and Parent agrees to provide the other with a substantially concurrent copy of any notice delivered by such first party to the Escrow Agent pursuant to Section 2 above. The Interested Parties agree that the above security procedures are commercially reasonable.

If to Purchaser:

América Móvil, S.A.B. de C.V.
Lago Zurich 245, Edificio Telcel, Piso 16
Colonia Granada Ampliación
México, D.F. 11529
Attention: Alejandro Cantú Jiménez, General Counsel

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E-mail: acantu@americamovil.com

With a copy (which will not constitute notice) to:

Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
Attention: Neil Whoriskey
Email: nwhoriskey@cgsh.com

If to Parent:

NII Holdings, Inc.
12110 Sunset Hills Road, Suite 600
Reston, VA 20190
Attention: Shana C. Smith, General Counsel
E-mail: Shana.Smith@nii.com

With a copy (which will not constitute notice) to:

Jones Day
250 Vesey Street
New York, New York 10281
Attention: S. Wade Angus
Email: swangus@jonesday.com

If to the Escrow Agent:
 
Citibank, N.A.
Agency & Trust
388 Greenwich Street, 14th Floor
New York, NY 10013
Attention: Miriam Molina
E-mail: miriam.molina@citi.com & cts.spag@citi.com

(b)    Any funds to be paid by the Escrow Agent hereunder shall be sent by wire transfer pursuant to the instructions set forth on Schedule D, or as otherwise may be instructed by the Interested Parties.

(c)    Payments to the Escrow Agent shall be sent by wire transfer pursuant to the following instructions:


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13.    Amendment; Waiver. Any amendment of this Agreement shall be binding only if evidenced by a writing signed by each of the parties to this Agreement. No waiver of any provision hereof shall be effective unless expressed in writing and signed by the party to be charged.

14.    Severability. The invalidity, illegality or unenforceability of any provision of this Agreement shall in no way affect the validity, legality or enforceability of any other provision. If any provision of this Agreement is held to be unenforceable as a matter of law, the other provisions shall not be affected thereby and shall remain in full force and effect.

15.    Mergers and Conversions. Any corporation or entity into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any corporation or entity resulting from any merger, conversion or consolidation to which the Escrow Agent will be a party, or any corporation or entity succeeding to the business of the Escrow Agent will be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.

16.    Termination. This Agreement shall terminate and the Escrow Account shall be closed upon the first to occur of (i) the distribution of all Escrow Property from the Escrow Account established hereunder in accordance with the terms of this Agreement or (ii) delivery to the Escrow Agent of a written notice of termination executed by the Interested Parties, in each case subject to the survival of obligations specifically contemplated in this Agreement to so survive.

17.    Counterparts. This Agreement may be executed simultaneously in two or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same agreement. Scanned signatures on counterparts of this Agreement shall be deemed original signatures with all rights accruing thereto, except in respect of any non-US entity, whereby originals are required (which shall be provided to the Escrow Agent within ten (10) Business Days after execution of this Agreement).


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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed by a duly authorized representative as of the day and year first written above.
 

CITIBANK, N.A.,
as Escrow Agent


By:                    
Name:
Title:
Date:

AMÉRICA MÓVIL, S.A.B. DE C.V.,
as Purchaser


By:                    
Name:
Title:
Date:



NII HOLDINGS, INC.,
as Parent


By:                    
Name: Shana C. Smith
Title: Vice President, General Counsel and Corporate Secretary
Date:


    



EXHIBIT991IMAGE1.JPG
Exhibit 99.1



NII HOLDINGS ANNOUNCES CLOSING OF SALE OF NEXTEL BRAZIL


Aggregate purchase price of $948.5 million after adjustments

o Net purchase price of $456.9 million after deducting $491.6 million of net debt

NII received a total of $329.2 million of net sale proceeds, including $30.0 million placed in indemnification escrow and $134.8 million placed in convertible notes escrow


RESTON, Va., December 18, 2019 - NII Holdings, Inc. (“NII”) [NASDAQ: NIHD] today announced the completion of the previously announced sale of its wireless operations in Brazil (“Nextel Brazil” and such sale, the “Transaction”) in accordance with the terms of the Purchase Agreement, dated March 18, 2019, by and among América Móvil, S.A.B. de C.V. (“AMX”), NII International Holdings S.à r.l. (“NIIH”), AI Brazil Holdings B.V. (“AI Brazil”) and NII (the “Purchase Agreement”), as amended from time to time.

At the closing of the Transaction, AI Brazil sold all of its interests in Nextel Holdings S.à r.l. (“Nextel Holdings”) to NII Brazil Holdings S.à r.l. (“NIIBH”), and NIIH sold all of the issued and outstanding shares of NIIBH to AMX, resulting in AMX acquiring direct ownership of NIIBH and indirect ownership of all of the issued and outstanding shares of Nextel Brazil.

The aggregate purchase price was $948.5 million, after making adjustments pursuant to the Purchase Agreement to add a $30.3 million reimbursement of capital expenditures and a $16.9 million working capital adjustment and to deduct a $3.7 million selling and marketing spending shortfall compared to budget. After deducting $491.6 million of net debt, the net purchase price at closing was $456.9 million. The purchase price is subject to review and adjustment by AMX within 45 days of the closing of the Transaction.

In consideration for the sale of its 27.55% ownership interest in Nextel Brazil, AI Brazil received a $2.5 million preferred return and its $125.2 million pro rata share of the net sale proceeds. After deducting these amounts, NII’s share of the net sale proceeds was $329.2 million.

Pursuant to the terms of the Purchase Agreement, $30.0 million of the net sale proceeds due to NII was placed into an 18-month escrow account to secure NII’s indemnification obligations under the Purchase Agreement with AMX and Citibank, N.A., as escrow agent. In addition, $134.8 million of the net sale proceeds due to NII was placed into a separate escrow to satisfy NII’s obligations under its convertible notes and related indenture. After taking into account these amounts, and accounting for a $1.9 million upward adjustment for a decrease in estimated accrued tax contingencies pursuant to the Purchase Agreement, the net proceeds to NII were $166.3 million.





As of December 17, 2019, NII had $25.4 million of cash and $103.4 million of cash held in escrow.

Based on current information (including actual net sale proceeds), assumptions and estimates, the Company expects the total amount of cash available to be distributed to stockholders in the future will be between $227.0 million ($2.17 per share) and $280.0 million ($2.68 per share). This range of distributable values is primarily driven by the ultimate recovery of amounts currently held in escrow accounts.

"We are pleased to announce the successful completion of the sale of Nextel Brazil," stated Dan Freiman, NII's Chief Financial Officer. "We would like to thank all of our employees for continuing to deliver great results this year and for their many years of service. With the sale of our last remaining operating asset behind us, we are preparing to begin the process to dissolve NII and distribute cash to stockholders later next year after we receive the required judicial approval."






About NII Holdings, Inc.

Visit NII Holdings’ website at www.nii.com.
Safe Harbor Statement
“Safe Harbor Statement under the Private Securities Litigation Reform Act of 1995. This news release includes “forward-looking statements” within the meaning of the securities laws. The statements in this news release regarding the proceeds of the sale of Nextel Brazil and potential distributions to our stockholders upon liquidation and dissolution, as well as our business and economic outlook, future performance, and other statements that are not historical facts, are forward-looking statements. Forward-looking statements are estimates and projections reflecting management’s judgment based on currently available information and involve a number of risks and uncertainties that could cause actual results to differ materially from those suggested by the forward-looking statements. With respect to these forward-looking statements, management has made assumptions regarding, among other things, the proceeds of the sale of Nextel Brazil; our existing and future costs, expenses, claims and other liabilities, and the impact of these matters on our liquidation and dissolution; and escrowed proceeds of the sales of our operations in Mexico and Brazil. Future performance cannot be assured and actual results may differ materially from those in the forward-looking statements. Some factors that could cause actual results to differ include the risks and uncertainties relating to: any factors raised by AMX in connection with the purchase price relating to the sale of Nextel Brazil; the amount of the costs, fees, expenses and charges related to the sale of Nextel Brazil, or the impact of any adjustments to the purchase price; the cost and outcome of any legal proceedings that may be instituted against us and others in connection with the sale of Nextel Brazil or our delisting and dissolution; the timing and amount of cash and other assets available for distribution to our stockholders upon our dissolution and winding up; the impact of liquidity constraints, including the inability to recover estimated amounts currently in escrow and access escrowed funds when expected; and the additional risks and uncertainties that are described in NII’s Annual Report on Form 10-K for the year ended December 31, 2018, as well as in other reports filed from time to time by NII with the Securities and Exchange Commission. This press release speaks only as of its date, and NII disclaims any duty to update the information herein.
Media Contacts:

NII Holdings, Inc.
12110 Sunset Hills Road, Suite 600
Reston, Virginia 20190
(703) 390-5100
www.nii.com

Investor and Media Relations: Dan Freiman
(703) 547-5209
dan.freiman@nii.com




EXHIBIT992IMAGE1.JPG
Exhibit 99.2


NII Holdings Announces
Voluntary Delisting and Dissolution


RESTON, Va., December 18, 2019 - NII Holdings, Inc. (“NII”) [NASDAQ: NIHD] today announced that it notified the Nasdaq Stock Market (“Nasdaq”) of its intent to delist its common stock, par value $0.001 per share (the “Common Stock”), from the Nasdaq Global Select Market. NII expects to file a Form 25 (Notification of Removal from Listing) with the Securities and Exchange Commission (the “SEC”) and Nasdaq relating to the delisting of the Common Stock on or about December 30, 2019 and to suspend trading of its Common Stock on the Nasdaq Global Select Market prior to the opening of trading on January 2, 2020. NII does not expect that a trading market will develop for its Common Stock following suspension of trading on Nasdaq. NII expects that the official delisting of its Common Stock will be effective January 9, 2020.
 
As previously disclosed, NII’s stockholders approved a plan to liquidate and dissolve NII following the completion of the then pending sale of its operations in Brazil, its sole remaining operating asset. In a separate release, NII today announced that this sale was completed on December 18, 2019. As a result, in addition to delisting its Common Stock, NII intends to file its certificate of dissolution on or about January 13, 2020.

NII also intends to file a Form 15 as soon as practicable to indefinitely suspend its reporting obligations under the Securities Exchange Act of 1934, as amended (the “Act”), and seek relief from its reporting obligations under the Act to file a Form 10-K for the year ending December 31, 2019. The decision to seek such relief and to suspend such reporting obligations was based on numerous considerations, including the auditing, legal and other costs and expenses associated with continuing to make such filings with the SEC.






About NII Holdings, Inc.

For more information about NII Holdings, Inc. please visit NII Holdings' website at nii.com.

Safe Harbor Statement

“Safe Harbor Statement under the Private Securities Litigation Reform Act of 1995. This news release includes “forward-looking statements” within the meaning of the securities laws. The statements in this news release regarding the expected completion, timing and effects of our delisting, plan of dissolution and suspension of reporting obligations under the Act, and other statements that are not historical facts, are forward-looking statements. Forward-looking statements are estimates and projections reflecting management’s judgment based on currently available information and involve a number of risks and uncertainties that could cause actual results to differ materially from those suggested by the forward-looking statements. With respect to these forward-looking statements, management has made assumptions regarding, among other things, the timing and ability of NII to delist, dissolve and suspend its reporting obligations. Future performance cannot be assured and actual results may differ materially from those in the forward-looking statements. Some factors that could cause actual results to differ include the risks and uncertainties relating to the limited resources remaining available to NII and the additional risks and uncertainties that are described in NII’s Annual Report on Form 10-K for the year ended December 31, 2018, as well as in other reports filed from time to time by NII with the Securities and Exchange Commission. This press release speaks only as of its date, and NII disclaims any duty to update the information herein.

Media Contacts:

NII Holdings, Inc.
12110 Sunset Hills Road, Suite 600
Reston, Virginia 20190
(703) 390-5100
www.nii.com

Investor and Media Relations: Dan Freiman
(703) 547-5209
dan.freiman@nii.com




Exhibit 99.3


NII HOLDINGS, INC. AND SUBSIDIARIES
PRO FORMA CONDENSED CONSOLIDATED FINANCIAL INFORMATION
Unaudited

The following unaudited pro forma condensed consolidated financial information is based on the historical consolidated financial statements of NII Holdings, Inc., which we refer to as NII, including certain pro forma adjustments. This financial information has been prepared to illustrate the pro forma effect of the completion of the previously announced sale of NII's wireless operations in Brazil, or Nextel Brazil, in accordance with the terms of the purchase agreement, dated March 18, 2019, by and among América Móvil, S.A.B. de C.V., or AMX, NII International Holdings S.à r.l., AI Brazil Holdings B.V., or AI Brazil, and NII, as amended from time to time. The purchase price was $905.0 million. After making adjustments pursuant to the purchase agreement to deduct $491.6 million of net debt and a $3.7 million selling and marketing spending shortfall compared to budget, and to add a $30.3 million reimbursement of capital expenditures and a $16.9 million working capital adjustment, the net purchase price at closing was $456.9 million. In consideration for the sale of its 27.55% ownership interest in Nextel Brazil, AI Brazil received a $2.5 million preferred return and its $125.2 million pro rata share of the net purchase price. After deducting these amounts, NII's share of the net purchase price was $329.2 million. Pursuant to the terms of the purchase agreement, $30.0 million of the net proceeds due to NII was placed into an 18-month escrow account to secure NII's indemnification obligations under the purchase agreement with AMX and Citibank, N.A., as escrow agent. In addition, pursuant to the indenture agreement, dated August 14, 2018, between NII and Wilmington Trust, National Association, as trustee, that governs NII's 4.25% convertible senior notes due 2023, $134.8 million of the net proceeds due to NII was placed into an escrow account to secure NII's obligations under the indenture. After taking into account the amounts placed into escrow and accounting for a $1.9 million upward adjustment for a decrease in estimated accrued tax contingencies pursuant to the purchase agreement, the net cash proceeds to NII were $166.3 million.

This unaudited pro forma condensed consolidated financial information gives effect to the pro forma adjustments necessary to reflect the sale of Nextel Brazil as if it had occurred as of the beginning of the earliest period presented in the pro forma condensed consolidated statements of operations for each of the years ended December 31, 2016, 2017 and 2018, and as of September 30, 2019 in the pro forma condensed consolidated balance sheet.

The unaudited pro forma condensed consolidated financial information contained herein has been prepared based upon available information and management estimates. Actual amounts may differ from these estimated amounts. In addition, this unaudited pro forma condensed consolidated financial information is not necessarily indicative of the financial position or results of operations that might have occurred had the sale of Nextel Brazil occurred as of January 1, 2016 or September 30, 2019, respectively.

This unaudited pro forma condensed consolidated financial information should be read in conjunction with the consolidated financial statements, notes to the consolidated financial statements and Management's Discussion and Analysis of Financial Condition and Results of Operations contained in our annual report on Form 10-K for the year ended December 31, 2018 and the condensed consolidated financial statements, notes to the condensed consolidated financial statements and Management's Discussion and Analysis of Financial Condition and Results of Operations contained in our quarterly reports on Form 10-Q for the periods ended March 31, 2019, June 30, 2019 and September 30, 2019.



















NII HOLDINGS, INC. AND SUBSIDIARIES
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
AS OF SEPTEMBER 30, 2019
(in thousands, except par values)
Unaudited

 
As Filed
 
Pro Forma Adjustments for Activity of Business and Net Assets Disposed
 
Unaudited Pro Forma
 
 
 
 
 
 
ASSETS
Current assets
 

 
 

 
 
Cash and cash equivalents
$
29,331

 
$
166,925

(a)
$
196,256

Cash in escrow
103,435

 

 
103,435

Prepaid expenses and other
3,258

 
(600
)
(b)
2,658

Assets held for sale
281,950

 
(281,950
)
(c)

Total current assets
417,974

 
(115,625
)
 
302,349

Other assets
2,136

 
164,750

(d)
166,886

Assets held for sale
833,199

 
(833,199
)
(c)

Total assets
$
1,253,309

 
$
(784,074
)
 
$
469,235

 
 
 
 
 
 
LIABILITIES AND STOCKHOLDERS’ (DEFICIT) EQUITY
Current liabilities
 

 
 

 
 
Accounts payable, accrued expenses and other
$
21,083

 
$
28,792

(e)
$
49,875

Current portion of long-term debt

 
115,000

(f)
115,000

Liabilities held for sale
348,878

 
(348,878
)
(c)

    Total current liabilities
369,961

 
(205,086
)
 
164,875

Long-term debt
77,301

 
(77,301
)
(g)

Other long-term liabilities
400

 

 
400

Liabilities held for sale
1,032,801

 
(1,032,801
)
(c)

      Total liabilities
1,480,463

 
(1,315,188
)
 
165,275

Stockholders’ (deficit) equity
 

 
 

 
 
Undesignated preferred stock, par value $0.001, 10,000 shares authorized, no shares issued or outstanding 

 

 

Common stock, par value $0.001, 140,000 shares authorized, 102,836
  shares issued and outstanding
103

 

 
103

Paid-in capital
2,129,087

 
3,325

(h)
2,132,412

Accumulated deficit
(2,287,782
)
 
459,227

(i)
(1,828,555
)
Accumulated other comprehensive loss
4,955

 
(4,955
)
(j)

Total NII stockholders’ (deficit) equity
(153,637
)
 
457,597

 
303,960

Noncontrolling interest
(73,517
)
 
73,517

 

Total (deficit) equity
(227,154
)
 
531,114

 
303,960

    Total liabilities and stockholders’ (deficit) equity
$
1,253,309

 
$
(784,074
)
 
$
469,235






NII HOLDINGS, INC. AND SUBSIDIARIES
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 2018
(in thousands, except per share amounts)
Unaudited

 
As Filed
 
Pro Forma Adjustments for Activity of Business and Net Assets Disposed
 
Unaudited Pro Forma
Operating revenues
 

 
 

 
 
Service and other revenues
$
605,492

 
$
(605,470
)
(k)
$
22

Handset and accessory revenues
15,205

 
(15,205
)
(k)

 
620,697

 
(620,675
)
 
22

Operating expenses
 

 
 

 
 
Cost of service (exclusive of depreciation and amortization included below)
287,598

 
(287,598
)
(l)

Cost of handsets and accessories
18,571

 
(18,571
)
(l)

Selling, general and administrative
308,828

 
(292,642
)
(l)
16,186

Impairment, restructuring and other charges, net
18,949

 
(18,597
)
(l)
352

Depreciation
15,119

 
(15,119
)
(l)

Amortization
13,497

 
(13,497
)
(l)

 
662,562

 
(646,024
)
 
16,538

Operating loss
(41,865
)
 
25,349

 
(16,516
)
Other (expense) income
 

 
 

 
 
Interest expense, net
(100,513
)
 
96,306

(m)
(4,207
)
Interest income
12,357

 
(11,195
)
(k)
1,162

Foreign currency transaction losses, net
(49,008
)
 
49,003

(l)
(5
)
Other (expense) income, net
(7,217
)
 
13,549

(l)
6,332

 
(144,381
)
 
147,663

 
3,282

Loss from continuing operations before income taxes
(186,246
)
 
173,012

 
(13,234
)
Income tax benefit

 

 

Net loss from continuing operations
$
(186,246
)
 
$
173,012

 
$
(13,234
)
 
 
 
 
 
 
Net loss from continuing operations per common share, basic and diluted
$
(1.86
)
 
$
1.71

(o)
$
(0.15
)
 
 
 
 
 
 
Weighted average number of common shares outstanding, basic and diluted
100,675

 

 
100,675





NII HOLDINGS, INC. AND SUBSIDIARIES
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 2017
(in thousands, except per share amounts)
Unaudited

 
As Filed
 
Pro Forma Adjustments for Activity of Business and Net Assets Disposed
 
Unaudited Pro Forma
Operating revenues
 

 
 

 
 
Service and other revenues
$
848,806

 
$
(848,700
)
(k)
$
106

Handset and accessory revenues
21,888

 
(21,888
)
(k)

 
870,694

 
(870,588
)
 
106

Operating expenses
 

 
 

 
 
Cost of service (exclusive of depreciation and amortization included below)
370,435

 
(370,435
)
(l)

Cost of handsets and accessories
40,207

 
(40,207
)
(l)

Selling, general and administrative
510,168

 
(488,050
)
(l)
22,118

Impairment, restructuring and other charges, net
175,358

 
(174,098
)
(l)
1,260

Depreciation
20,451

 
(20,451
)
(l)

Amortization
14,995

 
(14,995
)
(l)

 
1,131,614

 
(1,108,236
)
 
23,378

Operating loss
(260,920
)
 
237,648

 
(23,272
)
Other (expense) income
 

 
 

 
 
Interest expense, net
(118,605
)
 
118,605

(m)

Interest income
41,507

 
(40,950
)
(k)
557

Foreign currency transaction losses, net
(1,271
)
 
1,260

(l)
(11
)
Other (expense) income, net
(7,485
)
 
7,935

(l)
450

 
(85,854
)
 
86,850

 
996

Loss from continuing operations before income taxes
(346,774
)
 
324,498

 
(22,276
)
Income tax benefit
6,347

 
(568
)
(n)
5,779

Net loss from continuing operations
$
(340,427
)
 
$
323,930

 
$
(16,497
)
 
 
 
 
 
 
Net loss from continuing operations per common share, basic and diluted
$
(3.40
)
 
$
3.22

(o)
$
(0.18
)
 
 
 
 
 
 
Weighted average number of common shares outstanding, basic and diluted
100,332

 

 
100,332





NII HOLDINGS, INC. AND SUBSIDIARIES
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 2016
(in thousands, except per share amounts)
Unaudited

 
As Filed
 
Pro Forma Adjustments for Activity of Business and Net Assets Disposed
 
Unaudited Pro Forma
Operating revenues
 

 
 

 
 
Service and other revenues
$
963,209

 
$
(963,041
)
(k)
$
168

Handset and accessory revenues
21,837

 
(21,837
)
(k)

 
985,046

 
(984,878
)
 
168

Operating expenses
 

 
 

 
 
Cost of service (exclusive of depreciation and amortization included below)
364,648

 
(364,648
)
(l)

Cost of handsets and accessories
29,273

 
(29,273
)
(l)

Selling, general and administrative
560,760

 
(526,097
)
(l)
34,663

Impairment, restructuring and other charges, net
1,384,811

 
(1,340,610
)
(l)
44,201

Depreciation
135,429

 
(132,850
)
(l)
2,579

Amortization
36,954

 
(35,837
)
(l)
1,117

 
2,511,875

 
(2,429,315
)
 
82,560

Operating loss
(1,526,829
)
 
1,444,437

 
(82,392
)
Other (expense) income
 

 
 

 
 
Interest expense, net
(113,732
)
 
113,732

(m)

Interest income
37,689

 
(36,818
)
(k)
871

Foreign currency transaction gains (losses), net
76,615

 
(78,008
)
(k)
(1,393
)
Other expense, net
(10,514
)
 
9,613

(l)
(901
)
 
(9,942
)
 
8,519

 
(1,423
)
Loss from continuing operations before income taxes
(1,536,771
)
 
1,452,956

 
(83,815
)
Income tax benefit
2,892

 
2

(n)
2,894

Net loss from continuing operations
$
(1,533,879
)
 
$
1,452,958

 
$
(80,921
)
 
 
 
 
 
 
Net loss from continuing operations per common share, basic and diluted
$
(15.32
)
 
$
14.52

(o)
$
(0.80
)
 
 
 
 
 
 
Weighted average number of common shares outstanding, basic and diluted
100,098

 

 
100,098





Note 1.
Basis of Presentation

The accompanying unaudited pro forma consolidated information gives effect to the pro forma adjustments necessary to reflect the sale of Nextel Brazil as if it had occurred as of the beginning of the earliest period presented in the pro forma condensed consolidated statements of operations for each of the years ended December 31, 2018, 2017 and 2016, and as of September 30, 2019 in the pro forma condensed consolidated balance sheet.

Note 2.
Pro Forma Adjustments

The unaudited pro forma condensed consolidated statements of operations and pro forma condensed consolidated balance sheet reflect the effect of the following pro forma adjustments:

(a)
Reflects the net effect of the proceeds received upon completion of the sale of Nextel Brazil and includes capital expenditures, working capital adjustments and selling and marketing adjustments, net of a deposit placed into escrow in accordance with the indenture agreement governing our 4.25% convertible senior notes due 2023 and cash placed into escrow to secure specified indemnity obligations.
Purchase price
$
905,000

Add: capital expenditures reimbursement
30,251

Add: net working capital reimbursement
16,924

Less: selling and marketing adjustment
(3,721
)
Aggregate purchase price
948,454

Less: net financial debt, excluding capital leases
(491,598
)
Net purchase price
456,856

Less: AI Brazil Holdings' preferred share return
(2,470
)
Net proceeds to be allocated
454,386

NII's portion of purchase price (72.45%)
329,192

Less: Escrow related to convertible senior notes
(134,750
)
Less: Escrow related to sale
(30,000
)
Add: Accrued tax contingencies adjustment
1,881

Increase in consolidated cash and cash equivalents
$
166,323

    
This adjustment to cash and cash equivalents also reflects a portion of current director and officer insurance that will be refunded in connection with the closing of the transaction.

(b)
Reflects a portion of current director and officer insurance that will be refunded in connection with the closing of the transaction.

(c)
Reflects the elimination of Nextel Brazil's assets and liabilities previously classified as held for sale.

(d)
Includes a $134.8 million deposit placed into escrow in accordance with NII's indenture agreement governing our 4.25% convertible senior notes due 2023 and a $30.0 million deposit placed into escrow to secure specified indemnity obligations in connection with the sale of Nextel Brazil.

(e)
Includes $14.7 million related to the agreed upon settlement amount that resolves a dispute regarding the investment of funds in Nextel Holdings with AI Brazil. Also includes other liabilities triggered by the sale of Nextel Brazil, primarily certain success fees and severance costs.

(f)
Represents the reclassification of long-term debt to current portion of long-term debt, as well as the write-up of debt to its face value due to the acceleration of original issue discount amortization that is triggered by the convertible senior notes becoming immediately puttable upon closing of the sale.

(g)
Represents the reclassification of long-term debt to current portion of long-term debt.

(h)
Represents the effect on additional paid-in capital of the acceleration of certain stock-based compensation.





(i)
Reflects the impacts on accumulated deficit of the completion of the sale of Nextel Brazil, including an estimated $520.0 million gain.

(j)
Reflects the reclassification of accumulated other comprehensive loss, primarily related to Nextel Brazil's cumulative foreign currency translation losses.

(k)
Reflects the elimination of revenue and interest income historically reported by Nextel Brazil. For the indicated line items, all activity historically reported as part of Nextel Brazil's business has been eliminated.

(l)
Reflects the elimination of expenses as a result of the sale of Nextel Brazil. For the indicated line items, all activity historically reported as part of Nextel Brazil's business has been eliminated.

(m)
Reflects the elimination of interest expense as a result of the sale of Nextel Brazil.

(n)
Reflects the elimination of Nextel Brazil's income tax benefit.

(o)
Recalculated as the pro forma adjustment to net loss from continuing operations divided by the weighted average number of basic and diluted shares outstanding for the respective period.