Annual Report — [x] Reg. S-K Item 405 — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K405 Form 10-K 30 169K
2: EX-10.25 Material Contract 112 318K
3: EX-10.26 Material Contract 120 367K
4: EX-10.26.1 Material Contract 30 72K
5: EX-10.26.2 Material Contract 48 121K
6: EX-10.26.3 Material Contract 16 43K
7: EX-10.26.4 Material Contract 12 31K
8: EX-10.26.5 Material Contract 9 28K
9: EX-10.26.6 Material Contract 19 56K
10: EX-10.26.7 Material Contract 5 17K
11: EX-10.26.8 Material Contract 44 100K
12: EX-10.26.9 Material Contract 19 49K
13: EX-10.27 Material Contract 86 302K
14: EX-10.28 Material Contract 88 375K
15: EX-13.1 Annual or Quarterly Report to Security Holders 42 217K
16: EX-21.1 Subsidiaries of the Registrant 1 10K
17: EX-23.1 Consent of Experts or Counsel 1 8K
18: EX-27.1 Financial Data Schedule (Pre-XBRL) 1 8K
EXHIBIT 10.28
SECOND AMENDED AND RESTATED
DEFERRED PAYMENT AGREEMENT
BY AND AMONG
CHILESAT TELEFONIA PERSONAL S.A.,
AS PURCHASER,
QUALCOMM INCORPORATED
AND THE OTHER VENDORS NAMED HEREIN,
INVERSIONES LEAP WIRELESS CHILE S.A.,
AS GUARANTOR,
QUALCOMM INCORPORATED,
AS ADMINISTRATIVE AGENT
AND
QUALCOMM INCORPORATED,
AS COLLATERAL AGENT
SECOND AMENDED AND RESTATED
DEFERRED PAYMENT AGREEMENT
THIS SECOND AMENDED AND RESTATED DEFERRED PAYMENT AGREEMENT (this
"Agreement") is entered into as of October 12, 1999, among CHILESAT TELEFONIA
PERSONAL S.A., a company duly organized under the laws of the Republic of Chile
("Purchaser"), INVERSIONES LEAP WIRELESS CHILE S.A., a company duly organized
under the laws of the Republic of Chile ("Guarantor"), QUALCOMM INCORPORATED, a
corporation duly organized under the laws of the State of Delaware ("QUALCOMM"),
as Vendor (as defined below), QUALCOMM INCORPORATED, as Administrative Agent (as
defined below) and QUALCOMM INCORPORATED, as Collateral Agent (as defined
below). This Agreement amends, restates and supersedes in its entirety the
Deferred Payment Agreement dated as of February 27, 1997, as amended by the
First Amendment to Deferred Payment Agreement dated as of April 24, 1997, and by
the Amended and Restated Deferred Payment Agreement dated as of June 24, 1998,
each executed among Purchaser, Telex-Chile S.A. and QUALCOMM ("Deferred Payment
Agreement").
RECITALS
A. Purchaser and Vendor entered into the Equipment Agreements (as
defined below) to purchase substantially all of Purchaser's requirements for
network and infrastructure equipment and related services for deployment in the
Republic of Chile (the "Project").
B. Vendor facilitated Purchaser's acquisitions under the Equipment
Agreements by making forbearances of the purchase price payable by Purchaser
pursuant to the Deferred Payment Agreement.
C. As part of its capital restructuring, Purchaser has requested and
Vendor has agreed, as a financial accommodation to Purchaser, to amend and
restate the Deferred Payment Agreement and capitalize such interest payments,
but only to the extent, in accordance with the terms, subject to the conditions
and in reliance upon the representations and warranties set forth below.
E. To facilitate the transactions described above, Purchaser desires,
and Vendors, Administrative Agent and Collateral Agent have agreed, to provide
certain financial accommodations and perform certain duties in connection
therewith, but only upon the terms and conditions and in reliance upon the
representations and warranties herein set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings set forth herein, and intending to be legally bound, Purchaser,
Guarantors, Vendors, Administrative Agent and Collateral Agent agree as follows:
1.
SECTION 1. DEFINITIONS.
1.1 DEFINED TERMS. As used in this Agreement, the following terms have
the respective meanings set forth below or set forth in the provision referenced
following such term:
"Additional Equipment Deferred Payment Agreement" means that
certain Additional Equipment Deferred Payment Agreement to be entered among
Purchaser, QUALCOMM and such other Persons as shall from time to time become
vendors thereunder, as the same may be amended, modified, supplemented or
restated from time to time.
"Administrative Agent" means QUALCOMM Incorporated or any
successor administrative agent.
"Administrative Agent-Related Persons" has the meaning set forth
in SECTION 7.4 hereof.
"Administrative Agent's Fee Letter" means the side letter, by and
among Purchaser, QUALCOMM, Vendors and Administrative Agent, relating to fees
payable from time to time from Purchaser to Administrative Agent in
consideration for the services to be performed by Administrative Agent pursuant
to the Credit Documents.
"Administrative Agent's Payment Office" means the address for
payments set forth on the signature page hereto in relation to the
Administrative Agent or such other address as Administrative Agent may from time
to time specify in accordance with SECTION 9.2.
"Affected Forbearance" has the meaning set forth in SECTION
2.14(a) hereof.
"Affiliate" means, with respect to any Person, each other Person
which, directly or indirectly, controls, is controlled by or is under common
control with such Person (excluding any trustee under, or any committee with
responsibility for administering, any pension plan or employee benefit plan);
provided, however, that for purposes of this Agreement, neither QUALCOMM nor
Purchaser shall be deemed to be Affiliates of the other. A Person shall be
deemed to be "controlled by" another Person if such other Person possesses,
directly or indirectly, power (a) to vote fifteen percent (15.0%) or more of the
securities (on a fully diluted basis) having ordinary voting power for the
election of directors, managing general partners or managing members or (b) to
direct or cause the direction of the management and policies of such Person,
whether by contract or otherwise.
"Aggregate Capitalized Interest Commitment" means, at any time,
an amount up to Fourteen Million Six Hundred Thousand Dollars ($14,600,000.00).
"Aggregate Commitment" means, as of the date of determination,
the aggregate amount of the Deferred Payment Balance plus the Aggregate
Capitalized Interest Commitment.
"Agreement" means this Second Amended and Restated Deferred
Payment Agreement, as the same may from time to time be amended, modified,
supplemented or restated as hereinafter provided.
2.
"Applicable Margin" means the percentage per annum initially
determined on the Funding Date, and adjusted from time to time as set forth
below, for such Forbearance based upon (a) the applicable EBITDA, (b) the Total
Debt/Total Capitalization Ratio, and (c) the applicable senior unsecured foreign
currency debt rating of Purchaser by Moody's Investors Service ("Moody's") or
the applicable senior unsecured foreign currency debt rating of Purchaser by
Standard & Poor's ("S&P"), whichever would indicate the lower Applicable Margin,
in accordance with the table below:
[Enlarge/Download Table]
---------- ------------------------------------------------- -------------------- --------------------
LEVEL DESCRIPTION APPLICABLE MARGIN APPLICABLE MARGIN
FOR LIBOR FOR BASE RATE
FORBEARANCES FORBEARANCES
--------- ------------------------------------------------- -------------------- --------------------
I As of the Operative Date and when no other +6.50%pa until the +5.50 %pa until
Level is applicable. second anniversary the second
of the Effective anniversary of the
Date and 7.00%pa Effective Date and
thereafter 6.00%pa thereafter
---------- ------------------------------------------------- -------------------- --------------------
II EBITDA greater than 0 for two consecutive +5.75 %pa +4.75 %pa
quarters and Total Debt/Total Capitalization of
less than or equal to 0.5; but Level III is not
applicable.
---------- ------------------------------------------------- -------------------- --------------------
III EBITDA greater than 0 for two consecutive +5.00%pa +4.00 %pa quarters
and Total Debt/Total Capitalization of
less than or equal to 0.5 and either
(i) S&P of greater than or equal to BBB or
(ii) Moody's of greater than or equal to Baa2,
provided, however, that in the event of a split
rating differing by more than one grade, the
intermediate grade shall be the applicable
rating.
---------- ------------------------------------------------- -------------------- --------------------
Notwithstanding anything to the contrary contained in this Agreement, after the
delivery from time to time by Purchaser to the Administrative Agent of quarterly
financial statements and compliance certificates required by SECTION 5.1(B), the
Applicable Margin for all LIBOR Forbearances and Base Rate Forbearances shall be
determined in accordance with the above table. If the above table indicates that
an adjustment to the existing Applicable Margin for all LIBOR Forbearances and
Base Rate Forbearances is required, the effective date for such adjustment shall
be the first Business Day following the date on which such financial statements
and compliance certificates were delivered (which adjustment shall remain
effective until the first day following the date on which Purchaser delivers to
the Administrative Agent quarterly financial statements and compliance
certificates evidencing that the Applicable Margins for all LIBOR Forbearances
and Base Rate Forbearances, in accordance with the above table, are to be
further adjusted) (the "Adjustment Date"). Notwithstanding the foregoing: (i) if
Purchaser shall at any time fail to timely deliver the financial statements
pursuant to SECTION 5.1(B) for any quarter preceding an Adjustment Date, the
Applicable Margin from and after such date to the next Adjustment Date shall be
the highest rate specified in the table above; and (ii) in no event shall
Purchaser be entitled to a decrease in the Applicable Margins applicable to
LIBOR Forbearances or Base Rate Forbearances if an Unmatured Event of Default or
Event of Default
3.
has occurred and is continuing. However, any increase pursuant to clause (i) of
the preceding sentence shall be immediately reversed upon delivery of such
financial statements and any decrease in the Applicable Margins which is
disallowed pursuant to clause (ii) of the preceding sentence shall become
effective immediately upon the cure of the Unmatured Event of Default or a
waiver of the Event of Default in question.
"Asset Sale" means the sale, transfer, lease or other disposition
by any Person or any of its Subsidiaries to any other party other than such
Person or its Subsidiaries of any assets or rights of such Person or such
Subsidiary (including, but not limited to, the sale of stock of partner
companies or Subsidiaries or any other Pledged Shares) other than (a) the sale
in the ordinary course of business of personal property or real property held
for resale in the ordinary course of business or (b) the sale, transfer, lease
or other disposition of capital equipment in the ordinary course of business
where the Net Proceeds of such sale, transfer, lease or other disposition are
reinvested in equipment used by such Person or its Subsidiaries in the ordinary
course of business of such Person and its Subsidiaries within one hundred eighty
(180) days after such sale, transfer, lease or other disposition, provided,
however, that the Net Proceeds of the sale and leaseback of the towers and sites
which may be reinvested and excluded from this definition of "Assets Sale,"
shall not exceed in the aggregate Forty Million Dollars ($40,000,000).
"Assignment of Lease" means an assignment of lease (or the
Chilean equivalent) executed by Purchaser in favor of Collateral Agent, on
behalf of Secured Parties, and consented to by the landlord, the form of which
shall be satisfactory to Secured Parties to assign to Collateral Agent, on
behalf of Secured Parties each of the leases of real property entered into by
Purchaser.
"Availability Period" means the period commencing on the
Operative Date and ending on the earliest of (a) September 29, 2001, (b) the
date Parent first pays interest on High Yield Debt, or (c) the date on which the
Capitalized Interest Facility is fully drawn, canceled or terminated under the
provisions of this Agreement.
"Base Rate" means the greater of (a) the rate of interest per
annum publicly announced by Administrative Agent at its headquarters in the
United States of America from time to time as its prime commercial lending rate,
such rate to be adjusted automatically (without notice) on the effective date of
any change in such publicly announced rate and (b) the Federal Funds Effective
Rate plus one-half of one percent (0.50%) (rounded upwards, if necessary, to the
next one-eighth of one percent (1/8 of 1%).
"Base Rate Forbearance" means any Forbearance bearing interest at
the Base Rate.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks are authorized or required by law to close
in New York City or in the Republic of Chile; provided that, when used in
conjunction with any LIBOR Forbearance, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.
4.
"Business Plan" means that certain initial business plan of
Purchaser to be initially approved by Vendor pursuant to SECTION 3.1(y), as the
same may from time to time be revised, amended, updated or otherwise modified
with written notification to Requisite Vendors.
"Capital Expenditures" means, for any person in respect of any
period, the sum of (a) the aggregate of all expenditures incurred by such person
during such period that, in accordance with GAAP, are or should be included as
additions to property, plant or equipment or other capital expenditures
reflected in the statement of cash flows of such person (including the amount of
assets leased under any Capital Lease obligation) and (b) to the extent not
covered by (a) above, the aggregate of all expenditures by such person to
acquire by purchase or otherwise the business, property or fixed assets of, or
stock or other evidence of beneficial ownership of, any other person; provided,
however, the Capital Expenditures shall not include expenditures of proceeds of
insurance settlements in respect of lost, destroyed or damaged assets, equipment
or other property to the extent such expenditures are made to replace or repair
such lost, destroyed or damaged assets, equipment or other property within
twelve (12) months of such destruction or damage.
"Capital Lease" means a lease, which has been or should be
capitalized on the books of the subject lessee in accordance with GAAP, plus to
the extent not otherwise included, the net proceeds of any sale and leaseback of
towers and sites.
"Capital Stock" of any Person means any and all shares, interest,
rights to purchase, warrants, options, preemptive rights, participations or
other equivalents of or interest in (however designated) the common or preferred
equity or equity or preference share capital of such Person, including without
limitation, partnership interests.
"Capitalized Interest Commitment" means, with respect to each
Capitalized Interest Vendor, the amount set forth on Schedule 1.1 as such
Vendor's Capitalized Interest Commitment, as such amount may be adjusted from
time to time pursuant to the terms of this Agreement.
"Capitalized Interest Commitment Percentage" means, with respect
to any Capitalized Interest Vendor, the percentage equivalent of such Vendor's
Capitalized Interest Commitment divided by the Aggregate Capitalized Interest
Commitment.
"Capitalized Interest Facility" means the extension of credit to
Purchaser by the Capitalized Interest Vendors as set forth in Section 2.2.
"Capitalized Interest Forbearance Request" has the meaning set
forth in SECTION 2.6(a) hereof.
"Capitalized Interest Forbearances" means Forbearances made to
Purchaser by Capitalized Interest Vendors under the Capitalized Interest
Facility pursuant to this Agreement.
"Capitalized Interest Vendors" means any Vendor having a
Capitalized Interest Commitment.
"Cash Interest Expense" means, for any period, Interest Expense
for such period minus, without duplication, any Interest Expense capitalized
during such period.
5.
"Change of Control" means the occurrence, after the date of this
Agreement, of: (a) any Person, or two (2) or more Persons acting in concert,
acquiring beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended), directly or indirectly, of securities of Purchaser or Parent, as the
case may be, (or other securities convertible into such securities) representing
greater than twenty percent (20.0%); (b) any Person, or two or more Persons
acting in concert, acquiring by contract or otherwise, or entering into a
contract or arrangement which, upon consummation, will result in its or their
acquisition of, or control over, securities of Purchaser or Parent, as the case
may be, (or other securities convertible into such securities) representing
greater than twenty percent (20.0%); or (c) during any twenty four (24)
consecutive calendar months, individuals who were directors of Purchaser or
Parent, as the case may be, on the first day of such period shall, together with
such directors as are approved by directors who were directors at the beginning
of such period, cease to constitute a majority of the board of directors of
Purchaser or Parent, as the case may be; provided, however, that so long as the
shares of Purchaser or Parent, as applicable, are not publicly traded on a
recognized national securities exchange in the Republic of Chile or in the
United States of America, no "Change of Control" shall exist under clause (a),
(b) or (c) above so long as Leap maintains beneficial ownership, directly or
indirectly of securities of Purchaser or Parent, as the case may be, (or other
securities convertible into securities) representing greater than fifty percent
(50%) of the combined voting power of all securities of Purchaser or Parent, as
the case may be, entitled to vote in the election of directors.
"Chattel Mortgage" means any chattel mortgage (or the Chilean
equivalent) executed by Purchaser in favor of Collateral Agent, on behalf of
Secured Parties, the form of which shall be satisfactory to Secured Parties and
adequate to give to Collateral Agent, on behalf of Secured Parties a first
priority perfected security interest (or the Chilean equivalent) in all of the
personal property of Purchaser, including, but not limited to, the License and
Other Licenses to the extent permitted by law.
"Collateral Agent" means QUALCOMM Incorporated in its capacity as
Collateral Agent under this Agreement and the Collateral Documents and, as
applicable, any of its agents, employees or attorneys-in-fact, including,
without limitation, any local agent appointed by Collateral Agent in relation to
registering any Collateral Documents for the benefit of Secured Parties.
"Collateral Agency and Intercreditor Agreement" means a
Collateral Agency and Intercreditor Agreement to be entered into among
Purchaser, Collateral Agent, Administrative Agent and other holders of Eligible
Secured Debt (or their representatives) that become parties thereto as provided
herein.
"Collateral Documents" means the Security Agreements, the Stock
Pledge Agreement, the Project Account Control Agreements and the Landlord's
Waivers.
"Commitment Fee" has the meaning set forth in SECTION 2.8(b)
hereof.
"Contingent Obligation" means as to any Person and its
Subsidiaries, (a) any obligation of such Person guaranteeing or intending to
guarantee any Indebtedness ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or
6.
indirectly, including any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation, or (iv) otherwise to assure, indemnify or hold harmless
the owner of such primary obligation against loss in respect thereof (other than
indemnity obligations arising in the ordinary course of business); (b) any
repurchase obligation or liability of such Person or any of its Subsidiaries
with respect to accounts or notes receivable permitted to be sold by such Person
or such Subsidiary pursuant to this Agreement; (c) any repurchase obligation or
other liability of such Person or any of its Subsidiaries with respect to
property leased by such Person pursuant to an Operating Lease; and (d)
obligations arising with respect to any other transaction which is the
functional equivalent of, or takes the place of borrowing but which does not
constitute, a liability on the financial statements of such Person, excluding
therefrom Operating Leases which do not require payment by or due from such
Person at the scheduled termination of such Operating Lease or pursuant to a
required purchase by such Person of the leased property; provided, however, that
the term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be the lesser of (x) an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Contingent Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined in good faith or (y) if
applicable, the maximum amount for which such contingently liable person may be
liable for pursuant to the terms of the instrument embodying such Contingent
Obligation or if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined in good faith.
"Contractual Obligation" means, as to any Person, any provision
of any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Contributed Capital" means, as of any date, (a) the amount of
cash proceeds received by Purchaser in connection with the issuance of common or
preferred equity and the principal amount of the Sponsor Subordinated
Indebtedness converted to equity pursuant to SECTION 3.1(dd) measured in Dollars
as determined on the date of such investment or conversion into equity, as the
case may be; and (b) Forty Seven Million Four Hundred Seventeen Thousand Dollars
($47,417,000) in respect of the agreed value of the License and the backbone.
"Credit Document Currency" has the meaning set forth in SECTION
9.23 hereof.
"Credit Documents" means this Agreement, the Notes, the Pagares,
the Collateral Documents, the Guaranty and any other agreements or instruments
that may hereafter be executed and delivered in favor of Secured Parties
pursuant to this Agreement.
"Credit Party" means Purchaser, each Guarantor and each other
party (other than Administrative Agent, Collateral Agent and Vendors) to a
Credit Document.
7.
"Credit Support Agreement" means that certain Credit Support
Agreement for an additional investment in Purchaser to be entered into between
Administrative Agent on behalf of Vendors, QUALCOMM, Parent and Leap, as the
same may be amended, modified, supplemented or restated from time to time. Such
Credit Support Agreement shall require Leap, upon the triggering of certain
financial covenants and/or events to be agreed upon, to invest up to
approximately Thirty Six Million Dollars ($36,000,000) from funds made available
to Leap pursuant to that certain Credit Agreement by and among Leap, QUALCOMM,
the other Lenders named therein and ABN AMRO Bank, N.V. dated as of September
23, 1998; provided, however, that the maximum funding obligation under the
Credit Support Agreement shall be reduced to the extent of additional cash
equity investment in Purchaser (i) from third parties after the date hereof
exceeds Fourteen Million Dollars ($14,000,000) and (ii) from Leap or its
Affiliates after the date hereof.
"Current Line of Business" means the fixed and mobile wireless
telecommunication business in the Republic of Chile.
"Date hereof" or "date hereof" means the date set forth at the
beginning of this Agreement.
"Deemed Capitalized Interest Forbearance Request" has the meaning
set forth in SECTION 2.6(a)(ii) hereof.
"Default Rate" means an interest rate per annum equal to the Base
Rate or LIBOR Rate plus the Applicable Margin plus, with reference to Events of
Default arising under (a) SECTION 6.1(a) and (b) SECTION 6.1(c) by reason of a
violation of the covenant set forth in SECTION 5.3(a) AND SECTION 5.3(b), five
percent (5.00%) per annum, and with reference to other Events of Defaults, two
percent (2.00%) per annum.
"Deferred Payment Balance" means an amount equal to Ninety
Million Six Hundred Eighty Five Thousand Three Hundred Eighty Four Dollars and
9/100 ($90,685,384.09), which amount includes all outstanding unpaid amount of
principal, accrued and capitalized interest and expenses owing to Vendor as of
the date hereof in connection with all forbearances made by Vendor to Purchaser
under the Deferred Payment Agreement (reflecting all amounts owing by Purchaser
to Vendor under the Equipment Agreements).
"Deferred Payment Balance Forbearance" has the meaning set forth
in SECTION 2.1 hereof.
"Dollar," "Dollars" and "$" means dollars in lawful currency of
the United States of America.
"EBITDA" means, for any period, determined on a consolidated
basis, the sum of (a) pre-tax net income (excluding any items of extraordinary
gain and loss and gains and losses on any Asset Sale) plus (b) to the extent
deducted from net income, (i) Interest Expense, (ii) depreciation expense, and
(iii) expense from the amortization of Intangibles. EBITDA will be adjusted to
exclude (a) interest income and other non-operating income or losses; (b) any
extraordinary non-cash items deducted from or included in the calculation of
pre-tax net income (other than items which will require cash payments and for
which an accrual or reserve is, or is required by GAAP to be, made); (c) the
EBITDA of any Subsidiaries or assets disposed of or
8.
discontinued during such period; and (d) the EBITDA of any Subsidiaries or
Affiliates that are not dividended to Purchaser.
"Effective Date" means the date hereof.
"Eligible Assignee" means (a) a commercial bank organized under
the laws of the United States, or any state thereof, (b) a commercial bank
organized under the laws of the Republic of Chile or any other country which is
a member of the Organization for Economic Cooperation and Development (the
"OECD"), or a political subdivision of any such country, which is acting through
a branch or agency located in the United States; which, in each case (under
clauses (a) and (b) above) has a combined capital and surplus of at least Two
Hundred Million Dollars ($200,000,000); (c) an Affiliate of a Vendor; or (d) a
finance company, financial institution, fund or any other Person, which in each
case has a combined capital and surplus of at least Two Hundred Million Dollars
($200,000,000) and is approved in writing by Administrative Agent, Purchaser and
Requisite Vendors (which approvals shall not be unreasonably withheld);
provided, however, that (i) neither Purchaser nor its respective Affiliates
shall qualify as an Eligible Assignee; and (ii) no direct competitor of
Purchaser competing in Purchaser's principal line of business shall qualify as
an Eligible Assignee.
"Eligible Secured Debt" means (a) Other Senior Indebtedness, (b)
Other Vendor Indebtedness, (c) any other Indebtedness for borrowed money of the
Purchaser incurred to finance payments in respect of fees related to or interest
in respect of Other Vendor Indebtedness, and (d) any Indebtedness for borrowed
money of the Purchaser incurred to refinance Indebtedness referred to in clause
(a), (b) or (c) above in compliance with the Refinancing Terms; provided that:
(i) in the case of any Indebtedness described in clause (b) above,
such Indebtedness is incurred within 90 days of the purchase of the
equipment financed thereby, the principal amount thereof does not
exceed 100% of the purchase price of the equipment financed thereby
and such equipment becomes collateral under the Security Agreements
upon the purchase thereof (free of any Liens other than the Lien of
the Security Agreements);
(ii) in the case of any Indebtedness described in clause (c) above,
at the time of and after giving effect to the incurrence of any such
Indebtedness the aggregate principal amount of all Indebtedness
described in clause (c) above that has been incurred (on a cumulative
basis, whether or not such Indebtedness remains outstanding) shall
not exceed fifty percent (50%) of the aggregate principal amount of
all Indebtedness described in clause (b) above that has been incurred
(on a cumulative basis, whether or not such Indebtedness remains
outstanding) at or prior to such time;
(iii) in the case of any Indebtedness described in clause (b) or (c)
above, at the time of and after giving effect to the incurrence of
any such Indebtedness the aggregate principal amount of all such
Indebtedness that has been incurred (in each case, on a cumulative
basis, whether or not such Indebtedness remains outstanding) shall
not at any time exceed the cumulative Capital Expenditures permitted
under SECTION 5.3(h);
9.
(iv) in the case of any Indebtedness described in clause (b), (c) or
(d) above, the holder or holders of such Indebtedness (or a duly
authorized representative thereof on behalf of such holders) shall
have become a party to the Collateral Agency and Intercreditor
Agreement;
(v) in the case of any Indebtedness described in clause (a), (b), (c)
or (d) above, such Indebtedness is not guaranteed by any Person or
secured by any Lien (other than the Guaranties and Liens granted to
the Collateral Agent, on behalf of Vendors, to secure all Eligible
Secured Debt pursuant to the Security Documents); and
(vi) in the case of any Indebtedness described in clause (a) (b), (c)
or (d) above, (A)the terms and conditions of such Indebtedness shall
neither be less favorable to the Purchaser nor more favorable to the
applicable vendor or lender in any material respect than the terms
and conditions of the Forbearances and shall not be inconsistent with
the terms and conditions of the Forbearances, (B) at the time of and
after giving effect to the incurrence of any such Indebtedness, no
Event of Default or Unmatured Event of Default shall have occurred
and be continuing, and (C) at the time of and after giving effect to
the incurrence of any such Indebtedness, the ratio of Net Debt to
Total Capitalization shall not exceed .62:1.00.
In determining whether the requirements of clause (vi)(B) and (C) of this
definition are satisfied, Purchaser shall provide to Administrative Agent and
each Vendor at least ten (10) Business Days prior to entering into definitive
agreements for the incurrence of such Eligible Secured Debt, Purchaser's good
faith pro forma financial projections giving effect to the anticipated
incurrence of such Eligible Secured Debt over the one year period following the
date such Eligible Secured Debt is first incurred together with Purchaser's
calculation of the covenants set forth in Section 5.3 for each month during such
one year period showing no anticipated Event of Default based on a violation of
such covenants and that the Net Debt to Total Capitalization ratio does not
exceed .62:1.00 at any time during such period.
"Equipment Agreements" means the equipment supply and services
agreements between QUALCOMM or its Affiliates and Purchaser related to the
Project, including, without limitation, the System Equipment Purchase Agreement
dated as of February 27, 1997, as amended by that certain First Amendment to
System Equipment Purchase Agreement dated as of April 24, 1997, and that certain
Second Amendment to System Equipment Purchase Agreement dated as of June 24,
1998 as the same may be amended, modified, supplemented or restated hereafter
from time to time, by and among QUALCOMM and Purchaser, and as the same have
been assigned to Ericsson pursuant to the Assignment and Assumption of
Infrastructure Agreement, dated June 2, 1999.
"Ericsson" means Telefonaktiebolaget LM Ericsson and/or its
Affiliates, including Cia Ericsson de Chile S.A.
"Event of Default" means any of the events specified in SECTION
6.1 hereof, provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
10.
"Excess Cash Flow" means, for any fiscal year, calculated for
Purchaser and its Subsidiaries on a consolidated basis, the excess, if any, of
(a) EBITDA for such year, minus (b) the sum of, without duplication, (i) the
aggregate amount actually paid by Purchaser and its Subsidiaries in cash during
such fiscal year on account of Capital Expenditures (excluding the principal
amount of Indebtedness incurred in connection with such expenditures and any
such expenditures financed with the proceeds of any sale or other disposition of
property), (ii) the aggregate amount of all optional prepayments and mandatory
prepayments of funded debt during such fiscal year, (iii) the aggregate amount
of all regularly scheduled principal payments of funded debt of Purchaser and
its Subsidiaries made during such fiscal year (other than in respect of any
revolving credit facility to the extent there is not an equivalent permanent
reduction in commitments thereunder) and all cash interest in respect of such
payments paid during such period, (iv) corporate taxes actually paid by
Purchaser during such fiscal year, (v) increases in consolidated working capital
for such fiscal year, and (vi) the aggregate amount of payments of principal
hereunder and interest which is not capitalizable hereunder which are scheduled
to fall due within the 180 day period following the end of such fiscal year.
"Federal Funds Effective Rate" means, for any day, a fluctuating
interest rate per annum equal to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions received by
Administrative Agent from three (3) Federal funds brokers of recognized standing
selected by Administrative Agent.
"Final Availability Date" means the last day of the Availability
Period.
"Final Maturity Date" means September 30, 2006.
"Financial Statements" means, with respect to any fiscal quarter
(or full fiscal year) as to any Person, consolidated and consolidating
statements of income and cash flows of such Person and its Subsidiaries for such
fiscal quarter (or full fiscal year) of such Person (and, if the end of such
fiscal quarter of such Person is not also the end of such Person's first fiscal
quarter or full fiscal year, for the elapsed portion of such fiscal year of such
Person), and consolidated and consolidating balance sheets of such Person and
its Subsidiaries as of the end of such fiscal quarter (or full fiscal year) of
such Person, setting forth in each case in comparative form figures for the
corresponding fiscal quarter in the preceding fiscal year of such Person (and,
as applicable, the elapsed portion of the preceding fiscal year of such Person
or, if such period is a full fiscal year, corresponding figures from the
preceding fiscal year), all prepared in reasonable detail and in accordance with
GAAP consistently applied and which shall fairly present in all material
respects the financial condition of such Person and its Subsidiaries.
"Forbearance" means the Deferred Payment Balance Forbearance or a
Capitalized Interest Forbearance, and "Forbearances" means all of such
forbearances, collectively, unless the context otherwise requires.
"Funding Date" means each date on or after the Operative Date on
which Vendors make a Forbearance hereunder.
11.
"GAAP" means generally accepted accounting principles as in
effect from time to time in, as to Purchaser, the Republic of Chile and, as to
any other Person, its country of formation, applied on a consistent basis with
the most recent financial statements delivered to Vendors and for each of Parent
and Purchaser includes U.S. GAAP reconciliations for all period ends as are
required for reporting purposes by the United States Securities and Exchange Act
of 1934 or, at Purchaser's option, U.S. GAAP.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Governmental Consents" has the meaning set forth in SECTION
3.1(m) hereof.
"Guarantors" means Parent, Subsidiaries of Purchaser, if any, and
each other Person who shall from time to time execute a Guaranty.
"Guaranty" means the Guaranty and Support Agreement dated as of
the date hereof, entered into by Guarantors, and each other Guaranty and Support
Agreement hereafter entered into by each other Guarantor, each in favor of
Collateral Agent, on behalf of Secured Parties, which shall be acceptable to
Secured Parties, including, but not limited to, a Chilean guaranty in the form
of a public deed securing the obligations of Guarantors.
"Indebtedness" means, as to any Person, without double counting,
(a) all indebtedness of such Person for borrowed money (including, with respect
to Purchaser, the Obligations); (b) all obligations under Capital Leases of such
Person; (c) to the extent of the outstanding Indebtedness thereunder, all
obligations of such Person that are evidenced by a promissory note or other
instrument representing an extension of credit to such Person, whether or not
for borrowed money; (d) all obligations of such Person for the deferred purchase
price of property or services (other than trade or other accounts payable in the
ordinary course of business in accordance with customary industry terms unless
such trade or other account payable becomes more than ninety (90) days past
due); (e) all obligations for deferred customs duties; (f) all obligations of
such Person of the nature described in clauses (a), (b), (c) or (d), above, and
not otherwise included therein which are secured by a Lien on assets of such
Person, whether or not such Person has assumed such obligation or whether or not
such obligation is non-recourse to the credit of such Person, but only to the
extent of the fair market value of the assets so subject to such Lien; (g) all
obligations of such Person arising under acceptance facilities or under
facilities for the discount of accounts receivable of such Person; (h) all
issued and outstanding letters of credit, performance bonds and similar
instruments; (i) all obligations of such Person to a counterparty under any
interest rate protection agreement or other hedging arrangement; (j) any
security which, by its terms or the happening of any event (excluding a change
in control), matures or is mandatorily redeemable or is otherwise exchangeable
into debt at the option of the holder thereof; and (k) all Contingent
Obligations.
"Indemnitee" has the meaning set forth in SECTION 9.15 hereof.
"Intangibles" means, at a particular date, all assets of any
Person and its Subsidiaries determined on an unconsolidated basis at such date
that would be classified as intangible assets in accordance with GAAP.
12.
"Interest Expense" means, for any period, determined on a
consolidated basis for any Person and its Subsidiaries, the sum (without
duplication) of (a) interest expense on Total Debt, including (i) fees, (ii)
payments under any interest rate protection agreements or other hedging
agreements, (iii) the interest portion of any deferred payment obligations, (iv)
all fees and charges owed with respect to letters of credit or performance or
other bonds, (v) all accrued or capitalized interest, (vi) any amortization of
debt discount and (vii) all but the principal component of Capital Lease
payments plus (b) dividends declared or paid whether or not permitted pursuant
to this Agreement.
"Interest Payment Date" means, with respect to any LIBOR
Forbearance, the last day of each Interest Period applicable to such Forbearance
and, with respect to Base Rate Forbearances, the last Business Day of each
calendar quarter and each date a Base Rate Forbearance is converted into a LIBOR
Forbearance; provided however, that if any Interest Period for a LIBOR
Forbearance exceeds three (3) months, interest shall also be paid on the date
which falls three (3) months after the beginning of such Interest Period.
"Interest Period" means, with respect to each LIBOR Forbearance,
the period commencing on the date of the making or continuation of or conversion
to such LIBOR Forbearance and ending one, three or six months thereafter, as
Purchaser may elect in the applicable Forbearance Request or Notice of
Conversion/Continuation; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (c) below) that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless, in
the case of LIBOR Forbearances, such Business Day falls in the next calendar
month, in which case such Interest Period shall end on the next preceding
Business Day;
(b) any Interest Period applicable to a LIBOR Forbearance that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last Business
Day of a calendar month;
(c) any Interest Period with respect to a LIBOR Forbearance that
would otherwise end after the applicable Final Maturity Date shall end on such
Final Maturity Date;
(d) no Interest Period applicable to any LIBOR Forbearance shall
include a principal repayment date for such LIBOR Forbearance unless an
aggregate principal amount of Forbearances at least equal to the principal
amount due on such principal repayment date shall be Base Rate Forbearances or
other LIBOR Forbearances having Interest Periods ending on or before such date;
and
(e) notwithstanding clauses (c) and (d) above, no Interest Period
applicable to a LIBOR Forbearance shall have a duration of less than one (1)
month, and if any Interest Period applicable to such LIBOR Forbearance would be
for a shorter period, such Interest Period shall not be available hereunder.
"Invested Capital" means, as of any date of determination, the
sum of all Capital Stock investments in Purchaser and the amount of all Third
Party Subordinated Indebtedness and Sponsor Subordinated Indebtedness of
Purchaser outstanding as of such date.
13.
"Investment" means, as to any Person, any direct or indirect
ownership or purchase or other acquisition by such Person of any Capital Stock,
obligations or other securities, or a beneficial interest in any Capital Stock,
obligations (excluding trade payables to such Person arising in the ordinary
course) or other securities of any other Person (including a Subsidiary), or all
or substantially all assets used to conduct a business or a line of business, or
any direct or indirect loan, advance or capital contribution by such Person to
any other Person, or any joint venture or other arrangement involving the
sharing of profits or losses from joint business activities, including all
Indebtedness and accounts receivable from that other Person which are not
current assets or did not arise from sales to that other Person in the ordinary
course of business.
"Investment Grade Instruments" means (a) marketable direct
obligations issued or unconditionally guaranteed by the United States of America
or the Republic of Chile and maturing within one (1) year from the date of
acquisition thereof by Purchaser, (b) time deposits or certificates of deposit
of a U.S. or Chilean bank, the commercial paper or other short-term unsecured
debt obligations of which (or, in the case of a bank that is the principal
subsidiary of a holding company, the holding company) are rated, (i) in the case
of a U.S. bank, either A1 or better by Standard & Poor's Ratings Group ("S&P")
or P1 or better by Moody's Investors Service, Inc. ("Moody's"), and maturing
within one (1) year from the date of acquisition thereof by Purchaser, or (ii)
in the case of a Chilean bank, the highest rating of any Chilean bank, but in
any event not less than A2 by S&P or P2 by Moody's, and maturing within ninety
(90) days (unless the rating is not less than A1 by S&P or P1 by Moody's, in
which case maturing within one (1) year) from the date of acquisition thereof by
Purchaser, or (c) commercial paper of a U.S. or Chilean issuer, (i) in the case
of a U.S. issuer, rated either A1 or better by S&P or P1 or better by Moody's,
and maturing within one (1) year from the date of acquisition thereof by
Purchaser, or (ii) in the case of a Chilean issuer, the highest rating of a
Chilean issuer, but in any event not less than the equivalent of A2 by S&P or P2
by Moody's, and maturing within ninety (90) days (unless the rating is not less
than A1 by S&P or P1 by Moody's, in which case maturing within one (1) year)
from the date of acquisition thereof by Purchaser.
"Judgement Currency" has the meaning set forth in SECTION 9.24
hereof.
"Landlord's Waiver" means each agreement with any landlord and
any landlord's mortgagee (or the Chilean equivalent), substantially in the form
of EXHIBIT B, as such may from time to time be required to be executed and
delivered by Purchaser pursuant to this Agreement.
"Laws" means, collectively, all national, international, foreign,
federal, state, provincial and local statutes, treaties, codes, ordinances,
rules, orders, regulations and precedents of any court or other governmental
agency from time to time in effect.
"Leap" means Leap Wireless International, Inc., a Delaware
corporation.
"Leap Loans" has the meaning set forth in SECTION 4.1(j) hereof.
"LIBOR Forbearance" means any Forbearance bearing interest at the
LIBOR Rate.
"LIBOR" means the rate at which deposits in U.S. Dollars are
offered to leading banks in the London interbank market.
14.
"LIBOR Rate" shall mean, for any Interest Period for each LIBOR
Forbearance, the rate per annum (rounded upward, if necessary, to the nearest
whole multiple of 1/16 of 1% per annum) appearing on Telerate Page 3750 as of
11:00 A.M. (London time) on the date (as to any Interest Period, the
"Determination Date") that is two Business Days before the first day of such
Interest Period, as LIBOR for a period equal to such Interest Period. In the
event that Telerate Page 3750 shall cease to report such LIBOR or, in the
reasonable judgement of the Requisite Vendors, shall cease to accurately reflect
such LIBOR, then the "LIBOR Rate" with respect to such Interest Period for such
LIBOR Forbearance shall be the rate per annum equal to the average of the rate
per annum at which deposits in Dollars are offered by the principal office of
each of the Reference Banks in London, England to leading banks in the London
interbank market at 11:00 A.M. (London time) on the Determination Date in an
amount substantially equal to such Reference Bank's LIBOR Forbearance comprising
part of the related Forbearance and for a period equal to such Interest Period
or, if no Reference Bank has a LIBOR Forbearance constituting part of the
related Forbearance, the rate per annum at which deposits in Dollars are offered
by the principal office of Citibank, N.A. in London, England to leading banks in
the London interbank market at 11:00 A.M. (London time) on the Determination
Date in an amount substantially equal to the aggregate of all LIBOR Forbearances
constituting part of the related Forbearance and for a period equal to such
Interest Period. The LIBOR Rate for any Interest Period for each LIBOR
Forbearance shall be determined by Administrative Agent on the basis of the
applicable rate appearing on Telerate Page 3750 as aforesaid (or the applicable
rates furnished to and received by Administrative Agent from the Reference
Banks) on the Determination Date for such Interest Period.
"License" has the meaning set forth in SECTION 4.1(s) hereof.
"Lien" means any mortgage, deed of trust, pledge, security
interest, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), or preference, priority or other security agreement or
preferential agreement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement, or any
financing lease having substantially the same economic effect as any of the
foregoing).
"Material Adverse Effect" means a material adverse effect on (a)
the business, properties, assets, results of operations, financial condition or
prospects of Purchaser, any of its Subsidiaries or any Guarantor, individually
or taken as a whole or (b) the ability of Purchaser, any of its Subsidiaries or
any Guarantor to discharge the Obligations in accordance with their terms.
"Material Indebtedness" has the meaning set forth in SECTION
6.1(d) hereof.
"Maturity" or "maturity" means the earlier of (a) the Final
Maturity Date and (b) the date on which (i) the Forbearances have been
accelerated or (ii) the Forbearances have been prepaid in full and the Aggregate
Commitment terminated pursuant to this Agreement.
"Mortgage" means a mortgage (or the Chilean equivalent) executed
by Purchaser in favor of Collateral Agent, on behalf of Secured Parties, the
form of which shall be satisfactory to Secured Parties and which shall be
adequate to give to Collateral Agent, on behalf of Secured Parties a first
priority perfected security interest (or the Chilean equivalent) in all of the
real property of Purchaser.
15.
"Net Debt" means, with respect to any Person, Total Debt minus
the sum of cash and Investment Grade Instruments in excess of Fifteen Million
Dollars ($15,000,000).
"Net Proceeds" means, with respect to any Asset Sale of Parent or
Purchaser, or the issuance and sale of any Capital Stock of Parent or Purchaser,
or the issuance and sale of any debt by Purchaser or Parent, the gross cash
consideration received by such Parent or Purchaser from such sale, issuance or
incurrence, net of commissions, direct sales costs, normal closing adjustments,
taxes attributable to such sale, insurance proceeds, issuance or incurrence and
professional fees and expenses incurred by Parent or Purchaser in connection
therewith, to the extent the foregoing are actually paid (or will be paid,
provided that such amounts have been accrued in accordance with GAAP and will be
paid within one year of the date of the closing of such sale of assets or
issuance and sale of Capital Stock in connection with such sale).
"Note" or "Notes" means those notes referred to in SECTION 2.12
hereof.
"Notice of Conversion/Continuation" has the meaning set forth in
SECTION 2.6(c) hereof.
"Obligation Currency" has the meaning set forth in SECTION 9.24
hereof.
"Obligations" means, collectively, all Indebtedness, principal,
interest, fees, expenses of Administrative Agent, Collateral Agent and Vendors
(including, without limitation, reasonable attorneys' and other fees, costs or
expenses incurred in connection with the preparation, negotiation,
administration and enforcement of the Credit Documents; Administrative Agent's,
Collateral Agent's and any Vendor's reasonable attorneys' fees and expenses
incurred in amending, enforcing or defending the Credit Documents, whether or
not suit is brought); and other amounts owed to Administrative Agent, Collateral
Agent or any Vendor by any Credit Party pursuant to this Agreement, the Credit
Documents or any other agreement, whether absolute or contingent, due or to
become due, now existing or hereafter arising, including any interest that
accrues after the commencement of an insolvency proceeding (including, without
limitation, any proceeding commenced by or against any Credit Party under any
provision of the United States Bankruptcy Code, as amended, or under any other
bankruptcy or insolvency law, including assignments for the benefit of
creditors, formal or informal moratoria, compositions, extensions generally with
any Credit Party's creditors, or proceedings seeking reorganization, arrangement
or other relief) and including any Indebtedness, liability or obligation owing
from any Credit Party to others that Administrative Agent, Collateral Agent or
any Vendor may have obtained by assignment or otherwise.
"Operative Date" means such time as when each and every condition
set forth in SECTION 3.1 and SECTION 3.2 hereof has been satisfied or waived by
all Vendors in their sole and absolute discretion.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) which is not a
Capital Lease other than any such lease under which that Person is lessor.
"Other Licenses" has the meaning set forth in SECTION 4.1(s)
hereof.
16.
"Other Project Documents" means the interconnection agreements
and such other agreements as shall be entered into from time to time which are
necessary or advisable to permit the profitable operation of the Project, the
absence of which, if the same were terminated, would be reasonably likely to
have a Material Adverse Effect.
"Other Senior Indebtedness" means any Indebtedness of Purchaser
for borrowed money except as described in clauses (b), (c) and (d) of the
definition of Eligible Secured Debt.
"Other Taxes" has the meaning set forth in SECTION 2.14(c)(i)
hereof.
"Other Vendor Indebtedness" means any Indebtedness of Purchaser
incurred to finance the purchase price of equipment and related services
acquired by Purchaser (other than pursuant to the Equipment Agreements) for use
in its wireless telecommunications and data networking business which
Indebtedness is either provided or guaranteed by the vendor of such equipment or
its affiliates.
"Pagare" or "Pagares" means those notes referred to in SECTION
2.12 hereof.
"Parent" means Inversiones Leap Wireless Chile S.A.
"Permitted Indebtedness" has the meaning set forth in SECTION
5.2(b) hereof.
"Permitted Liens" means: (a) Liens for taxes and assessments or
other governmental charges or levies not at the time delinquent or thereafter
payable without penalty; (b) Liens of carriers, warehousemen, mechanics,
materialmen, landlords, suppliers and lessors incurred in the ordinary course of
business for sums not overdue; (c) Liens created to secure the payment of the
purchase price of assets (including conditional sales agreements and other title
retention agreements, but not including Liens securing Capital Leases) on which
the Lien is created, provided that the aggregate amount at any one time
outstanding and secured thereby does not exceed the value of the equipment
purchased and is permitted under SECTION 5.2(b)(ii), and any such Lien attaches
only to the asset or assets so purchased; (d) Liens resulting from any judgment
or award, the time for the appeal or rehearing of which shall not have expired
and in respect of which Purchaser or any Guarantor shall at any time in good
faith be prosecuting an appeal and there exists a stay of execution; (e) Liens
securing appeal and surety bonds (to the extent such Indebtedness is otherwise
not prohibited hereby); and (f) other ordinary course Liens which do not
materially interfere with the operation of the business of Purchaser, including
easements.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
limited liability company, Governmental Authority or other entity of whatever
nature.
"Pesos" means the lawful currency of the Republic of Chile.
"Pledged Shares" means all of the issued and outstanding shares
of Capital Stock of Purchaser now or hereafter issued which shall, pursuant to
the Stock Pledge Agreement, be delivered to Collateral Agent on behalf of
Secured Parties as collateral for the Obligations under this Agreement,
including all certificates and instruments representing or evidencing such
securities.
17.
"Process Agent" has the meaning set forth in SECTION 9.11(c)
hereof.
"Pro Forma Required Debt Service" means, for any period, the sum
of (a) Cash Interest Expense for the next succeeding four (4) fiscal quarters
(assuming the interest rates in effect on Total Debt on the date of
determination are in effect throughout the next succeeding four (4) fiscal
quarters) and (b) scheduled principal payments on Total Debt for the next
succeeding four (4) fiscal quarters.
"Project" has the meaning set forth in the Recitals hereto.
"Project Accounts" means Purchaser's disbursement, operating and
investment accounts and any and all sub-accounts thereof.
"Project Account Control Agreements" means the control agreements
as shall be necessary or appropriate to perfect Collateral Agent's security
interest in the Project Accounts.
"Promise of Mortgage" means a promise of mortgage (or the Chilean
equivalent) executed by Purchaser in favor of Collateral Agent, on behalf of
Secured Parties, the form of which shall be satisfactory to Secured Parties and
in which Purchaser promises to execute additional Chattel Mortgages, Mortgages
and Assignment of Leases upon its acquisition of additional personal property or
real property or entering into additional real estate leases.
"Purchaser" has the meaning set forth in the Preamble hereto.
"Reference Banks" shall mean Citibank, N.A., ABN AMRO Bank N.V.
and Societe Generale.
"Refinancing Terms" means the following: (i) the principal amount
of any such Indebtedness does not exceed the amounts outstanding under the
Indebtedness refinanced and any applicable prepayment premiums, (ii) any such
Indebtedness has a scheduled maturity date that is on or after the scheduled
maturity date of the Indebtedness refinanced thereby, (iii) any such
Indebtedness has a weighted average life to maturity that is equal to or longer
than the remaining weighted average life to maturity of the Indebtedness
refinanced thereby (determined immediately prior to the giving effect to such
refinancing), (iv) any such Indebtedness does not include any provisions that
may require mandatory prepayment thereof prior to the scheduled maturity, other
than scheduled repayments taken into account in determining compliance with
clause (iii) above and other such provisions included in the Indebtedness
refinanced thereby, and (vi) if the Indebtedness being refinanced is
subordinated to the Forbearances, then such refinancing Indebtedness shall be
subordinated to the Forbearances on terms no less favorable to Vendors than the
Indebtedness being refinanced;
"Reimbursement Agreement" means that certain Reimbursement
Agreement to be entered into among Purchaser, QUALCOMM and such other Persons as
shall from time to time become Vendors thereunder, as the same may be amended,
modified, supplemented or restated from time to time.
"Requirements of Law" means, as to any Person, the Certificate or
Articles of Incorporation and Bylaws or Estatutos Sociales or other
organizational or governing documents of such Person, and any Law, treaty, rule
or regulation or determination of an arbitrator or a court
18.
or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which or by which such Person or any of its
property is subject.
"Requisite Vendors" means, at any time, Vendors then holding more
than fifty-one (51.0%) of the then aggregate unpaid principal amount of all
Forbearances then outstanding or, if no such Forbearances are then outstanding,
Vendors then having more than fifty-one percent (51.0%) of the Aggregate
Commitment; provided, however, that (a) in the event there shall be only two (2)
Vendors, both such Vendors and (b) in the event that there shall be any Vendor
which is an Affiliate of Purchaser such Vendor's shares shall not be included in
the above percentage calculation.
"Reserve Percentage" means the reserve percentage applicable to
an Interest Period (expressed as a decimal and rounded upwards, if necessary, to
the next higher 1/100 of 1%) in effect on the date the LIBOR Rate for such
Interest Period is determined under regulations issued from time to time by the
Board of Governors of the Federal Reserve System for determining the maximum
reserve requirement (including, without limitation, any basic, supplemental,
emergency or marginal reserve requirement) with respect to "eurocurrency
liabilities" (as defined under such regulations) having a term comparable to
such Interest Period.
"Responsible Officer" means any of the president, chief financial
officer, treasurer, Gerente General, Gerente de Finanzas, Gerente de Operaciones
or Gerente de Marketing of any Person.
"Secured Parties" means Collateral Agent, Administrative Agent,
Vendors, Indemnitees and any other Person to whom any sums of money shall be due
from Purchaser pursuant to the terms and Obligations hereunder.
"Security Agreements" means the Security Agreement by and between
Purchaser, as grantor, and Collateral Agent, on behalf of Secured Parties, each
Chattel Mortgage, Mortgage, Assignment of Lease and Promise of Mortgage,
assignment of material agreements entered into by Purchaser and/or Parent, and
any and all other security agreements, control agreements or consent agreements
pertaining to the grant to Collateral Agent, on behalf of Secured Parties, of a
first priority, perfected security interest (or the Chilean equivalent) in all
assets of Purchaser, in each case satisfactory in form and substance to Secured
Parties, as the same from time to time may be amended, modified, supplemented or
restated.
"Security Filings" means the filings duly executed by Purchaser
as debtor, in favor of Collateral Agent, for the benefit of Vendors, as secured
party, and caused to be filed prior to the Operative Date in the jurisdictions
required by Secured Parties.
"Senior Debt" means Total Debt minus the sum of Sponsor
Subordinated Indebtedness and Third Party Subordinated Indebtedness.
"Site Lease Agreement" means each Lease Agreement, substantially
in the form of EXHIBIT C, as such may from time to time be required to be
executed and delivered by Purchaser pursuant to this Agreement.
"Sponsor Subordinated Indebtedness" means unsecured Indebtedness,
as to any Person, owing to an Affiliate of such Person, no part of the principal
or interest of which is
19.
required to be paid (whether directly to the holders thereof or to a sinking
fund) prior to one year after the Final Maturity Date, and the payment of the
principal of and interest on which and any other obligations of such Person in
respect thereof is subordinated to the prior payment in full of the principal of
and interest (including post-petition interest) on the Notes and Pagares and all
other obligations and liabilities of Purchaser or any Guarantor, as the case may
be, to Vendors, Administrative Agent and Collateral Agent hereunder on terms and
conditions first approved in writing by Vendors, which approval shall not be
unreasonably withheld.
"Stock Pledge Agreement" means the Stock Pledge to be executed by
Parent and all shareholders of Purchaser in favor of Collateral Agent, on behalf
of Secured Parties, which shall be acceptable to Secured Parties and adequate to
give to Collateral Agent, on behalf of Secured Parties, a first priority
perfected security interest (or the Chilean equivalent) in all of the Pledged
Shares, as the same from time to time may be amended, modified, supplemented or
restated.
"Subordination Agreement" means that certain Subordination
Agreement to be entered into among Purchaser, Vendors, Leap and Parent, whereby
Leap and Parent subordinate all indebtedness owed by Purchaser or Parent in
their favor to Administrative Agent, Collateral Agent and Vendors hereunder, as
the same may be amended, modified, supplemented or restated from time to time.
"Subsidiary" means, as to any Person, an entity of which
twenty-five percent (25%) of the shares of stock (or similar Capital Stock)
having ordinary voting power (other than stock having such power only by reason
of the happening of a contingency) are at the time owned or controlled, directly
or indirectly, through one or more intermediaries, or both, by such Person.
"Subsidiary Stock Pledge Agreement" means the Subsidiary Stock
Pledge Agreement to be executed by Purchaser in favor of Collateral Agent, on
behalf of Secured Parties, which shall be acceptable to Secured Parties and
adequate to give to Collateral Agent, on behalf of Secured Parties, a first
priority perfected security interest (or the Chilean equivalent) in all of the
issued and outstanding shares of Capital Stock of each Subsidiary of Purchaser,
as the same from time to time may be amended, modified, supplemented or
restated.
"Subsidiary Security Agreements" means the Subsidiary Security
Agreement by and between each Subsidiary of Purchaser, as grantor, and
Collateral Agent, on behalf of Secured Parties, each Chattel Mortgage, Mortgage,
Assignment of Lease and Promise of Mortgage, and any and all other security
agreements, control agreements or consent agreements pertaining to the grant to
Collateral Agent, on behalf of Secured Parties, of a first priority, perfected
security interest (or the Chilean equivalent) in all assets of each Subsidiary
of Purchaser, in each case satisfactory in form and substance to Secured
Parties, as the same from time to time may be amended, modified, supplemented or
restated.
"Syndication" has the meaning set forth in SECTION 2.16 hereof.
"System" shall have the meaning as defined in the Equipment
Agreements.
"Taxes" has the meaning set forth in SECTION 2.14(c) hereof.
20.
"Telex Chile Debt" means any loans extended to Purchaser pursuant
to that certain Novation and Assumption of Payment Obligation Agreement by and
among Purchaser, Parent and Chilesat S.A. dated as of May 11, 1999.
"Third Party Subordinated Indebtedness" unsecured Indebtedness,
as to any Person; (a) owing to a non-Affiliate of such Person; (b) with a final
maturity date and weighted average life to maturity (computed from the date of
incurrence of such debt) of at least one day longer than the Final Maturity Date
and the weighted average life to maturity of the Notes and Pagares and all other
obligations and liabilities of Purchaser or any Guarantor, as the case may be,
to Vendors, Administrative Agent and Collateral Agent hereunder; (c) where the
Net Proceeds of such issuance are applied in accordance with SECTION 2.10(b);
and (d) where such Indebtedness is subordinated and on terms and conditions
first approved in writing by Requisite Vendors, which approval shall not be
unreasonably withheld.
"Total Capitalization" means, as of any date, determined on a
consolidated basis, the sum of (a) Total Debt, exclusive of Third Party
Subordinated Indebtedness and Sponsor Subordinated Indebtedness for purposes of
this calculation; (b) Third Party Subordinated Indebtedness; (d) Sponsor
Subordinated Indebtedness and (e) Contributed Capital.
"Total Debt" means, as of any date, determined on a consolidated
basis for any Person, the sum (without duplication) of (a) all principal and
Interest Expense owing under this Agreement; (b) any obligation for borrowed
money, including Indebtedness convertible into Capital Stock; (c) any security
issued by such Person for cash consideration which, by its terms or the
happening of any event (excluding a change in control), matures or is
mandatorily redeemable or is otherwise exchangeable into debt at the option of
the holder thereof or is redeemable by the holder thereof prior to one year
after the Final Maturity Date; (d) any obligation evidenced by a bond,
indenture, note or other similar instrument; (e) any obligation to pay the
deferred purchase price of property or services; (f) Capital Leases; (g) any
obligation to purchase securities or other property; (h) any contractual
obligation, contingent or otherwise, including obligations to reimburse any
other Person in respect of amounts paid under a letter of credit or performance
or other bond issued by such other Person; (i) any obligation of others secured
by a Lien on any asset of such Person or any of its Subsidiaries (provided, that
there is no recourse to such Person or any Subsidiary of such Person), but only
to the extent of the fair market value of the assets so subject to such Lien
plus (j) any Indebtedness of others guaranteed by such Person or its
Subsidiaries.
"Total Debt to EBITDA Threshold" means a Total Debt to EBITDA
ratio of less than six (6) as determined as of the end of any fiscal quarter.
"Unmatured Event of Default" means any event or occurrence not
yet constituting an Event of Default but which, with the giving of notice or the
passage of time or both, would constitute an Event of Default.
"U.S. GAAP" means generally accepted accounting principles in the
United States of America in effect from time to time.
"Vendor " or "Vendors" means QUALCOMM, any Affiliates of QUALCOMM
party to the Equipment Agreements and any assignee or successor thereof assigned
in accordance with SECTION 9.7 hereof.
21.
"Vendor Assignee" means Ericsson, and after any assignment of its
rights under the Equipment Agreements, its assignee thereunder.
"Vendor's Commitment" means, with respect to each Vendor, the
amount set forth on SCHEDULE 1.1 as such Vendor's "Total Commitment," as such
amount may be amended from time to time.
"Vendor Equipment" means equipment sold pursuant to the Equipment
Agreements.
"Vendor Office" means, with respect to any Vendor, the office or
offices of such Vendor specified as its "Domestic Lending Office" opposite its
name on the applicable signature page hereto, or such other office or offices of
such Vendor as it may from time to time notify Purchaser and Administrative
Agent.
"Wireless Subscribers" means, as of any date, the aggregate
number of customers then receiving and paying for wireless mobile and/or fixed
telephone services from Purchaser.
1.2 OTHER INTERPRETIVE PROVISIONS.
(a) All terms defined in this Agreement shall have their defined
meanings when used in the other Credit Documents and any certificate or other
document made or delivered pursuant hereto, unless the context clearly indicates
otherwise.
(b) As used in this Agreement and the other Credit Documents and
any certificate or other document made or delivered pursuant hereto, accounting
terms relating to any Person not defined in SECTION 1.1 above, and accounting
terms partly defined in SECTION 1.1 above to the extent not defined, shall have
the respective meanings given to them under GAAP.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. Section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
(d) All terms defined in this Agreement in the singular form
shall have comparable meanings when used in the plural form and vice versa.
(e) Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, and all Financial Statements required to be
delivered hereunder shall be prepared in accordance with GAAP. If any changes in
GAAP from those used in the preparation of the Financial Statements referred to
in SECTION 4.1(e) hereof ("GAAP Changes") hereafter occasioned by the
promulgation of rules, regulations, pronouncements and opinions by or required
by the Financial Accounting Standards Board of the American Institute of
Certified Public Accountants or the Republic of Chile or international
equivalent thereof (or successors thereto or agencies with similar functions)
result in a change in the method of calculation of any of the financial
covenants, standards or other terms or conditions found in this Agreement, the
parties hereto agree to enter into negotiations to amend such provisions so as
to reflect equitably such GAAP Changes with the desired result that the criteria
for evaluating the financial condition
22.
and performance of any Guarantor or Purchaser and its Subsidiaries shall be the
same after such GAAP Changes as if such GAAP Changes had not been made.
SECTION 2. DEFERRED PAYMENT BALANCE AND CAPITALIZED INTEREST FACILITY.
2.1 DEFERRED PAYMENT BALANCE. Purchaser acknowledges and agrees that as
of the date hereof the Deferred Payment Balance is the amount of principal,
accrued and capitalized interest and expenses Purchaser owes to Vendor in
connection with forbearances made by Vendor to Purchaser under the Deferred
Payment Agreement. Subject to the terms and conditions, and subject to the
limitations, herein set forth, Vendors agree, in accordance with this SECTION 2,
to make a Forbearance in the full amount of the Deferred Payment Balance
("Deferred Payment Balance Forbearance") as of the date hereof, which amount
shall be repaid in accordance with the terms and conditions set forth herein.
2.2 CAPITALIZED INTEREST FACILITY.
(a) CAPITALIZED INTEREST FORBEARANCE COMMITMENTS. Subject to the
terms and conditions, and subject to the limitations, herein set forth, each
Capitalized Interest Vendor, severally and for itself alone, agrees to make
Capitalized Interest Forbearances to Purchaser in amounts equal to such Vendor's
Capitalized Interest Commitment Percentage from time to time. At no time shall
the aggregate amount of outstanding Capitalized Interest Forbearances exceed the
Capitalized Interest Commitment.
(b) TYPES OF CAPITALIZED INTEREST FORBEARANCES. Capitalized
Interest Forbearances shall be available to Purchaser for (i) interest payments
to Vendors on the Deferred Payment Balance Forbearance, (ii) interest payments
on earlier Capitalized Interest Forbearances and (iii) paying the Commitment Fee
set forth in SECTION 2.8(b).
(c) CAPITALIZED INTEREST FORBEARANCE AVAILABILITY. Capitalized
Interest Forbearances shall be available from the Operative Date through the
Final Availability Date, in an aggregate amount not exceeding the Aggregate
Capitalized Interest Commitment; provided, however, that no Vendor shall be
required to make any Capitalized Interest Forbearance when there exists an Event
of Default or an Unmatured Event of Default. Capitalized Interest Forbearances
drawn and repaid during the Availability Period may not be re-drawn. Any part of
the Capitalized Interest Facility undrawn at the end of the Availability Period
shall be canceled.
2.3 TYPES OF FORBEARANCES. Each Forbearance shall, in accordance with
the terms of this Agreement, be in the form of either a Base Rate Forbearance or
a LIBOR Forbearance; provided, however, that, notwithstanding anything to the
contrary herein, the Deferred Payment Balance Forbearance shall bear interest at
the 30 days LIBOR Rate until such time as another rate is requested pursuant to
a Notice of Conversion/Continuation given in accordance with SECTION 2.6(c). At
no time may Purchaser maintain LIBOR Forbearances in more than six (6) separate
Interest Periods.
2.4 CONVERSION AND CONTINUATION ELECTIONS. Purchaser may, upon
irrevocable written notice to Administrative Agent:
(a) elect to convert on any Business Day, Base Rate Forbearances
in an amount equal to Two Million Five Hundred Thousand Dollars ($2,500,000) (or
any integral
23.
multiple of One Hundred Thousand Dollars ($100,000) in excess thereof) into
LIBOR Forbearances; or
(b) elect to convert on any Interest Payment Date any LIBOR
Forbearances maturing on such Interest Payment Date (or any part thereof) into
Base Rate Forbearances; or
(c) elect to continue on any Interest Payment Date any LIBOR
Forbearances maturing on such Interest Payment Date (or any part thereof in an
amount equal to Two Million Five Hundred Thousand Dollars ($2,500,000) or any
integral multiple of One Hundred Thousand Dollars ($100,000) in excess thereof)
as LIBOR Forbearances;
provided, that if the aggregate amount of LIBOR Forbearances shall have been
reduced by payment, prepayment, or conversion of any part thereof, to be less
than Two Million Five Hundred Thousand Dollars ($2,500,000), such LIBOR
Forbearances shall automatically convert into Base Rate Forbearances, and on and
after such date the right of Purchaser to continue such Forbearances as, and
convert such Forbearances into, LIBOR Forbearances shall terminate.
(d) unless all Vendors shall otherwise consent, during the
existence of an Unmatured Event of Default or Event of Default, Purchaser may
not elect to have a Forbearance converted to, or made or continued as, a LIBOR
Forbearance.
2.5 DURATION OF INTEREST PERIODS.
(a) Subject to the provisions of the definition of Interest
Period, the duration of each Interest Period applicable to a LIBOR Forbearance
shall be as specified in the applicable Forbearance Request or Notice of
Conversion/Continuation, as applicable.
(b) If Administrative Agent does not receive a notice of election
of duration of an Interest Period with respect to a borrowing of LIBOR
Forbearances pursuant to SUBSECTION (a) above within the applicable time limits
specified herein, Purchaser shall be deemed to have elected to make or convert
such Forbearances in whole into Base Rate Forbearances on the last day of the
then current Interest Period with respect thereto. Notwithstanding anything to
the contrary herein, any and all LIBOR Forbearances shall be converted in whole
into Base Rate Forbearances on the last day of the then existing Interest Period
with respect thereto if Administrative Agent shall have received notice from
Purchaser or a Vendor that a default, Unmatured Event of Default or an Event of
Default exists.
(c) Notwithstanding the foregoing, Purchaser may not select an
Interest Period that would end, but for the provisions of the definition of
Interest Period, after the applicable Final Maturity Date.
2.6 NOTICE AND MANNER OF MAKING ADDITIONAL FORBEARANCES.
(a) CAPITALIZED INTEREST FORBEARANCE.
(i) Not fewer than three (3) Business Days prior to the date
Purchaser desires to obtain a Capitalized Interest Forbearance, Purchaser shall
deliver by electronic facsimile transmission to each of Administrative Agent and
QUALCOMM, written notice specifying (A) the amount of such Capitalized Interest
Forbearance, (b) the effective date for the
24.
borrowing of such Capitalized Interest Forbearance, which notice shall be in the
form of EXHIBIT D to this Agreement (a "Capitalized Interest Forbearance
Request").
(ii) If Purchaser has not delivered a Capitalized Interest
Forbearance Request on or before the third Business Day prior to the next
succeeding Interest Payment Date, a Capitalized Interest Forbearance Request for
a Base Rate Forbearance shall be deemed to have been made on such date (a
"Deemed Capitalized Interest Forbearance Request") in the amount of the interest
payment to become due and payable on such Interest Payment Date.
(iii) Administrative Agent shall promptly notify each
Capitalized Interest Vendor as to the content of each Capitalized Interest
Forbearance Request or Deemed Capitalized Interest Forbearance Request.
(b) CAPITALIZED INTEREST FORBEARANCE REQUEST IRREVOCABLE. Once
given, a Capitalized Interest Forbearance Request shall be irrevocable and
Purchaser shall be bound to draw a Capitalized Interest Forbearance in
accordance therewith, except as otherwise provided in this Agreement. If for any
reason a Capitalized Interest Forbearance is not made in accordance with the
Capitalized Interest Forbearance Request, Purchaser shall on demand (which may
be made through the Administrative Agent) pay to Vendor such amount (if any) as
Vendor may certify, in a certificate setting out in reasonable detail the method
and basis of computation of such amount, to be necessary to compensate it for
any loss or expense incurred in liquidating or redeploying funds arranged for
the purpose of a proposed Capitalized Interest Forbearance or in terminating any
such arrangement in respect of this Agreement or otherwise as a direct
consequence of a Capitalized Interest Forbearance not having been made in
accordance with the Capitalized Interest Forbearance Request but, in each case,
only up to and including the last day of the relevant interest period determined
in accordance with this SECTION 2.6.
(c) CONVERSIONS/CONTINUATIONS OF FORBEARANCES. On each date on
which Purchaser desires, with respect to Forbearances to (A) continue any such
Forbearances hereunder or (B) convert any such outstanding Forbearances into
Forbearances of another type provided for in this Agreement, Purchaser shall
notify Administrative Agent (which notice shall be irrevocable) in writing by
electronic facsimile transmission received no later than 1:00 p.m. New York time
on the date one (1) Business Day before the day on which such requested
Forbearances are to be continued as or converted into Base Rate Forbearances,
and received no later than 1:00 p.m. New York time on the date three (3)
Business Days before the date on which such requested Forbearances are to be
continued as or converted into LIBOR Forbearances. Such notice shall specify (i)
the effective date and amount of such Forbearances or portion thereof to be
continued or converted, subject to the limitations set forth in SECTION 2.3
hereof, (ii) the interest rate option to be applicable thereto, and (iii) the
duration of the applicable Interest Period, if any (subject to the provisions of
the definition of Interest Period and SECTION 2.5) hereof. Each such
notification (a "Notice of Conversion/Continuation") shall be in the form of
EXHIBIT E to this Agreement.
(d) NOTIFICATION OF VENDORS. Administrative Agent shall promptly
notify each Vendor as to the content of each Capitalized Interest Forbearance
Request, Deemed Capitalized Interest Forbearance Request and Notice of
Conversion/Continuation.
25.
2.7 SCHEDULED PAYMENT OF PRINCIPAL OF THE FORBEARANCES.
(a) On each date set forth on SCHEDULE 2.7(a), Purchaser shall
pay that percentage of the principal amount of the Deferred Payment Balance
Forbearance outstanding on September 30, 2001 which is set forth opposite each
such date.
(b) On each date set forth on SCHEDULE 2.7(a), Purchaser shall
pay that percentage of the principal amount of the Capitalized Interest
Forbearances outstanding on September 30, 2001 which is set forth opposite each
such date.
(c) Any remaining unpaid Forbearances, accrued and unpaid
interest thereon and other amounts owing to Administrative Agent and Vendors
pursuant to this Agreement shall be due and payable in full at the Final
Maturity Date.
2.8 INTEREST RATES; PAYMENT OF INTEREST; COMMITMENT FEE; CALCULATION OF
INTEREST AND FEES.
(a) FORBEARANCES.
(i) BASE RATE FORBEARANCES. Each Base Rate Forbearance shall
bear interest on the outstanding principal amount thereof at a rate per annum
equal to the Base Rate plus the Applicable Margin. From the Effective Date such
interest shall be payable on each Interest Payment Date and at Maturity.
(ii) LIBOR FORBEARANCES. Each LIBOR Forbearance shall bear
interest on the outstanding principal amount thereof, for each Interest Period
applicable thereto, at a rate per annum equal to the LIBOR Rate plus the
Applicable Margin. From the Effective Date such interest shall be payable on
each Interest Payment Date and at Maturity.
(iii) DEFAULT RATE. Upon the occurrence of an Event of
Default and so long as such Event of Default shall continue, including after
acceleration (whether before or after entry of judgment), Purchaser shall pay
interest on the principal amount of each Forbearance then outstanding at the
Default Rate.
(b) FEES. Commencing on the Effective Date and through the Final
Availability Date, Purchaser shall pay to Administrative Agent, for the ratable
benefit of Vendors, a commitment fee equal to three-eighths of one percent
(0.375%) per annum on the average daily amount of the unutilized portion of the
Aggregate Capitalized Interest Commitment ("Commitment Fee"). Such Commitment
Fee shall be payable on the last Business Day of that month which is six (6)
months following the Effective Date and continuing on the last Business Day of
each six (6) month period thereafter through the Final Availability Date. So
long as there exists no Unmatured Event of Default or Event of Default, the
Commitment Fee may be financed under the Capitalized Interest Facility.
(c) CALCULATION OF INTEREST AND FEES. Interest on LIBOR
Forbearances and the Commitment Fee shall be computed on the basis of a 360-day
year and on the basis of a 365/366-day year for all Base Rate Forbearances and
fees for the actual number of days elapsed. In computing interest on any
Forbearance, the date of the making of such Forbearance shall be included and
the date of payment shall be excluded; provided, however, that if any
Forbearance
26.
is repaid on the same day on which it is made, such day shall be included in
computing interest on such Forbearance. Each change in the interest rate of the
Base Rate Forbearances based on changes in the Base Rate shall be effective on
the effective date of such change and to the extent of such change.
Administrative Agent shall give Purchaser prompt written notice of any such
change in the Base Rate; provided, however, that any failure by Administrative
Agent to provide Purchaser with notice hereunder shall not affect Vendors' right
to make changes in the interest rate of the Base Rate Forbearances based on
changes in the Base Rate.
2.9 PAYMENT PROCEDURES.
(a) PAYMENT ON BUSINESS DAYS. Whenever any payment due under this
Agreement shall fall due on a day other than a Business Day, the due date of
such payment shall be extended to the next succeeding Business Day (subject,
however, to CLAUSE (a) of the definition of Interest Period) and such payment
shall be made on such Business Day, and such extension of time shall be included
in the computation of interest.
(b) PLACE OF PAYMENT. Purchaser shall make all payments and
prepayments under this Agreement, the Notes and Pagares, the Commitment Fee, the
prepayment fees referred to in SECTION 2.10(A) hereof, and the principal of and
interest on the Forbearances to the Administrative Agent's Payment Office, in
lawful money of the United States and in immediately available funds no later
than 1:00 p.m., New York time, on the date of payment (which must be a Business
Day). All payments received after 1:00 p.m., New York time, on any Business Day,
shall be deemed to have been received on the next succeeding Business Day. After
the occurrence and during the continuance of an Event of Default, Purchaser
authorizes Vendors to charge from time to time against any or all of Purchaser's
deposits maintained with Vendors any amount payable by Purchaser hereunder not
paid when due. Each Vendor shall promptly notify Administrative Agent of each
such charge and pay over the same to Administrative Agent for application in
accordance with this Agreement.
(c) DISTRIBUTION OF PAYMENTS TO VENDORS BY ADMINISTRATIVE AGENT.
Upon receipt of any payment or prepayment of the Commitment Fee, the prepayment
fees referred to in SECTION 2.10(A) hereof, or the principal of and interest on
the Forbearances by or on behalf of Purchaser, Administrative Agent shall
promptly pay over to each Vendor at its Vendor Office its pro rata share of such
amount in like funds of the sum received.
(d) LATE PAYMENTS. If any amount required to be paid by Purchaser
under this Agreement or the other Credit Documents (including without
limitation, payments and prepayments of the principal amount of Forbearances,
accrued interest and fees) is not paid when due, Purchaser shall pay interest on
the unpaid amount until such amount is paid in full at a per annum rate equal to
the Default Rate, such rate to change from time to time as the Base Rate shall
change.
(e) APPLICATION OF PAYMENTS. Except as specifically set forth
herein, all payments under this Agreement shall be credited first to all fees
and other expenses then due to Administrative Agent and Collateral Agent, next
to all fees and other expenses then due to Vendors, next to all interest then
due, and lastly to all principal then due.
27.
(f) DESIGNATION OF PAYMENT. When making a payment under this
Agreement, Purchaser shall clearly specify which Forbearance, fee or expense
such payment relates to and the nature of the payment.
(g) ADMINISTRATIVE AGENT'S RIGHT TO ASSUME PAYMENTS WILL BE MADE
BY PURCHASER. Unless Administrative Agent shall have been notified by Purchaser
prior to the date on which any payment to be made by Purchaser hereunder is due
that Purchaser does not intend to remit such payment, Administrative Agent may
(in its sole and absolute discretion) assume that Purchaser has remitted such
payment when so due and Administrative Agent may (in its sole and absolute
discretion) and in reliance upon such assumption, make available to each Vendor
on such payment date an amount equal to such Vendor's Capitalized Interest
Commitment Percentage of such assumed payment. If Purchaser has not in fact
remitted such payment to Administrative Agent, each Vendor shall forthwith on
demand repay to Administrative Agent the amount of such assumed payment made
available to such Vendor, together with interest thereon in respect of each date
from and including the date such amount was made available by Administrative
Agent to such Vendor to the date such amount is repaid to Administrative Agent,
at the Federal Funds Rate.
2.10 PREPAYMENTS OF THE FORBEARANCES; CERTAIN REQUIRED PAYMENTS;
AGGREGATE COMMITMENT REDUCTION.
(a) VOLUNTARY PREPAYMENTS. Subject to the terms of SECTION
2.10(c), Purchaser shall have the right to prepay Forbearances in whole or in
part, without premium or penalty, from time to time on the following terms and
conditions: (i) Purchaser shall give Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay
Forbearances, the amount of such prepayment and the specific Forbearance(s) such
prepayment shall apply, which notice shall be given by Purchaser no later than
1:00 p.m. (New York time) three (3) days prior to the date of such prepayment,
and which notice shall promptly be transmitted by Administrative Agent to each
of the Vendors; (ii) each partial prepayment of any Forbearance shall be in an
aggregate principal amount of at least One Million Dollars ($1,000,000) and
shall be in integral multiples of One Million Dollars ($1,000,000) in excess
thereof; (iii) each prepayment of the Forbearances shall be applied pro rata to
the scheduled principal repayments of the outstanding Forbearances at the time
of prepayment of the Forbearances among all Vendors; and (iv) any interest
accrued on the amounts so prepaid to the date of such payment shall be paid at
the time of any such payment. Any notice of prepayment given by Purchaser under
any provision of this Agreement shall be irrevocable and Purchaser shall be
bound to make a prepayment in accordance therewith. Purchaser may not prepay the
Forbearances or any part thereof except in accordance with the express terms of
this Agreement. Amounts prepaid may not be reborrowed under this Agreement.
(b) MANDATORY PREPAYMENTS.
(i) PROCEEDS OF ASSET SALES. Notwithstanding the prohibition
of Asset Sales in SECTION 5.2(d) below, all Net Proceeds received by Purchaser
or any of its Subsidiaries at any time related to Asset Sales shall be paid by
Purchaser or such Subsidiaries to Administrative Agent no later than five (5)
days after receipt by Purchaser or such Subsidiary of such Net Proceeds to be
applied against the principal amount of the Forbearances then outstanding in an
amount equal to one hundred percent (100.0%) of such Net Proceeds;
28.
provided, however, that if required by the terms of the Eligible Secured Debt,
then one hundred percent (100.0%) of such Net Proceeds shall be applied pro rata
to such Eligible Secured Debt and the principal amount of the Forbearances then
outstanding. Concurrent with Purchaser's or such Subsidiary's receipt of such
Net Proceeds, the Capitalized Interest Commitment shall be reduced to reflect
the reduction of anticipated interest payments implied by such prepayment.
(ii) ISSUANCE OF DEBT OR EQUITY INSTRUMENTS. Net Proceeds
received by Parent, Purchaser or any of its Subsidiaries in excess of Two
Hundred Forty Five Million Dollars ($245,000,000) (reduced by the amount of
Assets Sales as determined without regard to the application of clause (b) of
the definition of Asset Sale) which are related to the public or private
issuance or sale of any debt or Capital Stock, shall be paid by Purchaser or
such Subsidiaries to Administrative Agent no later than five (5) days after
receipt by Purchaser or such Subsidiary of such Net Proceeds to be applied
against the principal amount of the Forbearances then outstanding as follows:
(A) if by issuance and sale of equity through a public offering, in an amount
equal to fifty percent (50%) of such Net Proceeds and (B) and in all other
cases, one hundred percent (100%) of the Net Proceeds aggregating in excess of
Fifty Million Dollars ($50,000,000); provided, however, that if required by the
terms of the Eligible Secured Debt, then such Net Proceeds shall be applied pro
rata to such Eligible Secured Debt and the principal amount of the Forbearances
then outstanding. Concurrent with Purchaser's or such Subsidiary's receipt of
such Net Proceeds, the Capitalized Interest Commitment shall be reduced to
reflect the reduction of anticipated interest payments implied by such
prepayment.
(iii) EXCESS CASH FLOW. Fifty percent (50%) of Purchaser's
Excess Cash Flow at any time shall be promptly paid by Purchaser to
Administrative Agent to be applied against the principal amount of the
Forbearances then outstanding; provided, however, that if required by the terms
of the Eligible Secured Debt, then such Excess Cash Flow amount shall be applied
pro rata to such Eligible Secured Debt and the principal amount of the
Forbearances then outstanding. As of the end of each fiscal year, the
Capitalized Interest Commitment shall be reduced to reflect the reduction of
anticipated interest payments implied by such prepayment of Excess Cash Flow.
(iv) PREPAYMENT OF OTHER INDEBTEDNESS. Notwithstanding the
limitations on prepayments in SECTION 5.2(g) below, in the event Purchaser or
any of its Subsidiaries prepays any Indebtedness other than the Forbearances and
mandatory payments made pursuant to the Telex Chile Debt, then Purchaser shall
immediately prepay a portion of the Forbearances in proportion to the
outstanding balances of the other Indebtedness paid.
(v) FORBEARANCES IN EXCESS OF COMMITMENT. Purchaser shall
immediately prepay a portion of the Capitalized Interest Forbearances to the
extent the total outstanding balance of all Capitalized Interest Forbearances
exceeds the Aggregate Capitalized Interest Commitment.
(c) BREAKAGE CHARGE. In the event of (i) the payment of any
principal of any LIBOR Forbearance other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (ii)
the conversion of any LIBOR Forbearance other than on the last day of the
Interest Period applicable thereto, or (iii) the failure to borrow, convert,
continue or prepay any Forbearance on the date specified in any notice delivered
pursuant hereto, then, in any such event, Purchaser shall compensate each Vendor
for the loss, cost and expense
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attributable to such event. In the case of a LIBOR Forbearance, such loss, cost
or expense to any Vendor shall be deemed to include an amount determined by such
Vendor to be the excess, if any, of (A) the amount of interest which would have
accrued on the principal amount of such LIBOR Forbearance had such event not
occurred, at the LIBOR Rate that would have been applicable to such LIBOR
Forbearance, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such LIBOR Forbearance), over (B) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Vendor
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Vendor setting forth any amount or amounts that
such Vendor is entitled to receive pursuant to this Section shall be delivered
to Purchaser and shall be conclusive absent manifest error. Purchaser shall pay
such Vendor the amount shown as due on any such certificate within ten (10) days
after receipt thereof.
(d) APPLICATION OF PREPAYMENTS. Mandatory prepayments of
Forbearances pursuant to this SECTION 2.10, other than mandatory prepayments
pursuant to SECTION 2.10(b)(iii) AND (iv), shall be applied in the inverse order
of scheduled principal repayments of the outstanding Forbearances at the time of
prepayment of the Forbearances. Voluntary prepayments and mandatory prepayments
of Forbearances pursuant to SECTION 2.10(b)(iii) or (iv) shall be applied pro
rata to the scheduled principal repayments of the outstanding Forbearances at
the time of prepayment of the Forbearances.
2.11 SURVIVABILITY. All of Purchaser's obligations under this Agreement
shall survive repayment of the Notes and Pagares until all obligations of
Purchaser to make payments to Administrative Agent and Vendors under all Credit
Documents are fully satisfied and Vendors' obligations to make the Forbearances
hereunder expire. Notwithstanding the foregoing, Purchaser's obligations set
forth in SECTIONS 9.4 and 9.15 of this Agreement shall survive Purchaser's
payment of all obligations under the Credit Documents and the expiration of
Vendors' obligations to make Forbearances hereunder.
2.12 EVIDENCE OF DEBT.
(a) Each Vendor shall maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of Purchaser to such
Vendor resulting from each Forbearance owing to such Vendor from time to time,
including the amounts of principal and interest payable and paid to such Vendor
from time to time hereunder in respect of such Forbearances.
(b) Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Forbearance made hereunder and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from Purchaser to each Vendor hereunder and
(iii) the amount of any sum received by Administrative Agent hereunder for the
account of Vendors and each Vendor's share thereof.
(c) The entries made in the accounts maintained pursuant to
paragraph (b) or (d) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Vendor or Administrative Agent to maintain
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such accounts or any error therein shall not in any manner affect the obligation
of Purchaser to repay the Forbearances in accordance with the terms of this
Agreement.
(d) No later than the Funding Date for each Forbearance,
Purchaser shall execute before a Chilean Notary Public and deliver to
Administrative Agent to hold on behalf of the Vendor making such Forbearance a
promissory note of Purchaser payable to such Vendor substantially in the form of
EXHIBIT A, attached hereto or in form and substance reasonably satisfactory to
Purchaser and such Vendor (each a "Pagare"), with appropriate insertions as to
the issue date, principal repayment dates, principal amount, Applicable Margin
and due date (which shall not be later than Maturity), and payable to the order
of such Vendor in a principal amount equal to the Forbearance. Such Pagare shall
be jointly and severally guaranteed by the Guarantors and shall be dated the
date such Forbearance is made. Notwithstanding anything to the contrary
contained herein, upon the reasonable request of Administrative Agent at any
time, Purchaser shall promptly execute and deliver to Administrative Agent to
hold on behalf of such Vendor a replacement Pagare or an endorsement with
respect to any Pagare theretofore issued in order to conform the terms thereof
to the terms of this Agreement, which replacement Pagare or endorsement shall be
jointly and severally guaranteed by the Guarantors and shall be dated the date
on which the replacement or endorsement is to be effective. Concurrently
therewith, Administrative Agent or Vendor, as the case may be, shall return the
replaced Pagare to Purchaser. Purchaser shall bear all costs and taxes arising
from such replacement or endorsement.
(e) Upon the written request of any Vendor, Administrative Agent
shall forward to such Vendor (i) all Pagares payable to such Vendor received by
Administrative Agent on or prior to such date (the "Request Date") within ten
(10) Business Days of receipt by Administrative Agent of such request, and (ii)
all Pagares payable to such Vendor received by Administrative Agent after the
Request Date within ten (10) Business Days of the receipt by Administrative
Agent thereof; provided that any Vendor requesting such delivery of its Pagares
shall reimburse Administrative Agent for all costs and expenses incurred by
Administrative Agent in the distribution thereof.
(f) In the case of any conflict between the terms of this
Agreement and any Pagare, the terms of this Agreement shall control. Without
limiting the generality of the foregoing, all Forbearances made hereunder shall
accrue interest from the date such Forbearance is made and, to the extent not
evidenced by a Pagare, shall otherwise be treated as a Forbearance hereunder
irrespective of Purchaser's execution or nonexecution of any Pagare.
(g) Upon partial repayment of any principal amount evidenced by
any Pagares, Purchaser may execute and deliver to Administrative Agent to hold
on behalf of each Vendor a replacement Pagare taking into account such
prepayment, which replacement Pagare shall be jointly and severally guaranteed
by the Guarantors and shall be dated the date on which the replacement is to be
effective. Concurrently therewith, Administrative Agent or Vendor, as the case
may be, shall return the replaced Pagare to Purchaser. Purchaser shall bear all
costs and taxes arising from such replacement.
(h) Upon request after the payment in full of all Obligations,
Administrative Agent and Vendors, as applicable, shall return all Pagares and
Notes received by them, stamped as paid in full.
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(i) In addition to the Pagares, Purchaser agrees to execute and
deliver to each Vendor, promptly upon request by such Vendor, a promissory note
evidencing Purchaser's Indebtedness to such Vendor under this Agreement in the
amount of such Vendor's Commitment ("Note"), which promissory note shall
acknowledge that the indebtedness outstanding thereunder may also be evidenced
by one or more Pagares and shall be satisfactory in form and substance to such
Vendor and Administrative Agent and shall be consistent with the terms of this
Agreement.
(j) If any Vendor exercises any right in any court in the
Republic of Chile under any Pagare or Note delivered pursuant to this Agreement,
it shall not be required for such purpose to evidence to Purchaser or any other
Person that such Pagare or Note represents Obligations of the Purchaser under
this Agreement nor that any condition herein has been fulfilled. Notwithstanding
discharge in full of any Pagare or Note, if the amount (including, without
limitation, default interest) paid or payable to any of the Vendors under such
Pagare or Note (whether arising from the enforcement thereof in the Republic of
Chile or otherwise) is less than the amount due and payable to such Vendor in
accordance with this Agreement with respect to the Forbearance, or portion
thereof, evidenced by such Pagare or Note, Purchaser agrees to pay to such
Vendor upon demand such difference.
2.13 NET PAYMENTS. Purchaser's obligation to make payments and perform
all other obligations hereunder, and the rights of Administrative Agent,
Collateral Agent and Vendors in and to such payments and performance, shall be
absolute and unconditional and shall not be subject to any abatement, reduction,
set-off, defense, counterclaim or recoupment for any reason whatsoever,
including, without limitation, abatements or reductions due to any present or
future claims of Purchaser against Administrative Agent, Collateral Agent or any
Vendor under this Agreement, the Equipment Agreements or otherwise, against any
vendor of equipment or services used or planned to be used, or against any other
Person for whatever reason. Except as otherwise expressly provided herein, this
Agreement shall not terminate, nor shall the obligations of Purchaser be
affected, by reason of (a) any defect in or damage to, or any loss or
destruction of, any of the equipment or services provided pursuant to the
Equipment Agreements or otherwise from any cause whatsoever; (b) any bankruptcy,
insolvency, reorganization or other proceeding relating to, or any action taken
by any trustee or receiver of, Administrative Agent, Collateral Agent, any
Vendor or any other Person; or (c) for any other cause, whether similar or
dissimilar to the foregoing, any present or future law or regulation to the
contrary notwithstanding, whether or not such cause shall give rise to a claim
by Purchaser against any Vendor or any other Person under the Equipment
Agreements or otherwise, it being the express intention of the parties hereto
that all amounts payable by Purchaser hereunder shall be, and continue to be,
payable in all events unless the obligation to pay shall be terminated pursuant
to the express provisions of this Agreement. All payments made by Purchaser
hereunder as required hereby shall be final, and Purchaser shall not seek to
recover any such payment or any part thereof for any reason whatsoever. Nothing
in this Agreement shall, however, release any claim Purchaser may have against
Administrative Agent, Collateral Agent or any Vendor, whether in connection with
the Equipment Agreements or otherwise. If for any reason whatsoever this
Agreement shall be terminated in whole or in part by operation of law or
otherwise, Purchaser shall nonetheless, to the extent permitted by applicable
law, pay to Administrative Agent, on behalf of Vendors, an amount equal to each
payment payable hereunder at the time and in the manner that such payment would
have become due and payable under the terms of this Agreement if it had not been
terminated in whole or in part.
32.
2.14 CHANGED CIRCUMSTANCES; TAXES.
(a) In the event that:
(i) on any date on which the LIBOR Rate would otherwise be
set, Administrative Agent shall have determined in good faith (which
determination shall be final and conclusive) that adequate and fair means do not
exist for ascertaining the LIBOR Rate, or
(ii) at any time Administrative Agent or any Vendor shall
have determined in good faith (which determination shall be final and
conclusive) that:
(A) the making or continuation of any Forbearance to a
LIBOR Forbearance has been made impracticable or unlawful by (1) the occurrence
of a contingency that materially and adversely affects the interbank eurodollar
market or (2) compliance by any Vendor in good faith with any applicable law or
governmental regulation, guideline or order or interpretation or change thereof
by any Governmental Authority charged with the interpretation or administration
thereof or with any request or directive of any such Governmental Authority
(whether or not having the force of law); or
(B) the LIBOR Rate shall no longer represent the
effective cost to any Vendor for U.S. dollar deposits in the interbank market
for deposits in which banks of the United States of America regularly
participate (including, without limitation, due to the imposition of a Reserve
Percentage);
then, and in any such event, such Vendor shall forthwith so notify
Administrative Agent and Purchaser thereof. From the date of delivery of such
notice until such Vendor reasonably determines that the circumstances giving
rise to such notice no longer apply, the obligation of Vendors to allow
selection by Purchaser of the type of Forbearance affected by the contingencies
described in this SECTION 2.14 (herein called "Affected Forbearances") shall be
suspended. If at the time Administrative Agent or a Vendor so notifies
Purchaser, Purchaser has previously given Administrative Agent a Notice of
Conversion/Continuation with respect to one or more Affected Forbearances but
such Forbearances have not yet gone into effect, such notification shall be
deemed to be void and Purchaser may request Forbearances of a non-affected type
by giving a substitute Notice of Conversion/Continuation pursuant to this
Agreement.
Upon such date as shall be specified in such notice (which shall not be
earlier than the date such notice is given) Purchaser shall, with respect to the
outstanding Affected Forbearances (other than Affected Forbearances described in
SECTION 2.14(a)(ii)(A)(1) above), either prepay or convert the same to Base Rate
Forbearances, together with interest thereon and any amounts required to be paid
pursuant to SECTION 2.10(c) above, and may request a Forbearance of another type
in accordance with this Agreement, by giving an a Notice of
Conversion/Continuation pursuant to this Agreement; provided that any such
prepayment shall not be deemed to constitute a prepayment pursuant to SECTION
2.10 above.
(b) In case any law, regulation, treaty or official directive or
the interpretation or application thereof by any court or by any Governmental
Authority charged with the administration thereof or the compliance with any
guideline or request of any central bank or other Governmental Authority
(whether or not having the force of law):
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(i) subjects any Vendor to any tax with respect to payments
of principal or interest or any other amounts payable hereunder by Purchaser or
otherwise with respect to the transactions contemplated hereby (except for such
taxes as are imposed on or measured by each Vendor's net income by the
jurisdiction under the laws of which such Vendor is organized or maintains a
place of business or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any deposit
insurance, reserve, special deposit or similar requirement against assets held
by, or deposits in or for the account of, or loans by, any Vendor (including,
without limitation, any imposition of a Reserve Percentage), or
(iii) imposes upon any Vendor any other condition with
respect to its performance under this Agreement,
and the result of any of the foregoing is to increase the cost to such Vendor,
reduce the income receivable by such Vendor or impose any expense upon such
Vendor with respect to any LIBOR Forbearances, such Vendor shall promptly notify
Purchaser thereof. Purchaser agrees to pay to such Vendor the amount of such
increase in cost, reduction in income or additional expense as and when such
cost, reduction or expense is incurred or determined, upon presentation by such
Vendor of a statement in the amount and setting forth such Vendor's calculation
thereof, which statement shall be deemed true and correct absent manifest error.
(c) Any and all payments by Purchaser to each Vendor and
Administrative Agent under this Agreement and any Credit Document shall be made
free and clear of, and without deduction or withholding for, any and all present
or future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Vendor, such
taxes (including income taxes, taxes on profits and franchise taxes) as are
imposed on or measured by each Vendor's net income or profits by the
jurisdiction under the laws of which such Vendor is organized or maintains a
place of business or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes").
(i) In addition, Purchaser shall pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement, any Pagares or any other Credit Documents (hereinafter referred to as
"Other Taxes").
(ii) Purchaser shall indemnify and hold harmless each Vendor
and Administrative Agent for the full amount of Taxes or Other Taxes (including
any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under
this SECTION 2.14) paid by such Vendor and any liability (including penalties,
interest, additions to tax and expenses, except for, in the event such Vendor or
Administrative Agent fails to deliver notice of such assertion of Taxes or Other
Taxes to Purchaser within one hundred eighty (180) days after it has received
notice of such assertion or imposition of Taxes or Other Taxes, any such
penalties, interest or expenses which would not have arisen but for the failure
of such Vendor or Administrative Agent to so notify Purchaser of such assertion
or imposition of Taxes or Other Taxes) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or
34.
legally asserted. Payment under this indemnification shall be made within thirty
(30) days from the date such Vendor or Administrative Agent makes written demand
therefor.
(iii) If Purchaser shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Vendor or Administrative Agent, then:
(A) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this SECTION 2.14) such Vendor or Administrative
Agent receives an amount equal to the sum it would have received had no such
deductions been made;
(B) Purchaser shall make such deductions; and
(C) Purchaser shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(iv) Within thirty (30) days after the date of payment by
Purchaser of Taxes or Other Taxes, Purchaser shall furnish to Administrative
Agent and each Vendor the original or a certified copy of a receipt evidencing
payment thereof, or other evidence of payment satisfactory to Administrative
Agent.
(v) If Purchaser fails to pay any Taxes or Other Taxes when
due to the appropriate taxing authority or fails to furnish to each Vendor the
required receipts or other required documentary evidence, Purchaser shall
indemnify Vendors for any incremental Taxes or Other Taxes, interest or
penalties that may become payable by any of Vendors or Administrative Agent as a
result of any such failure.
(vi) If Purchaser is required to pay additional amounts to
any Vendor pursuant to SECTION 2.14(c) hereof, then such Vendor shall use its
reasonable best efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its Vendor Office so as to eliminate any such
additional payment by such Vendor which may thereafter accrue if such change in
the judgment of such Vendor is not otherwise materially disadvantageous to such
Vendor.
2.15 CAPITAL REQUIREMENTS. If after the date hereof any Vendor
determines in good faith that (a) the adoption of or change in any law, rule,
regulation or guideline regarding capital requirements for Vendors, banks or
bank holding companies, or any change in the interpretation or application
thereof by any Governmental Authority charged with the administration thereof;
or (b) compliance by such Vendor or any of its Affiliates with any guideline,
request or directive of any such entity implemented after the date hereof
regarding capital adequacy (whether or not having the force of law), has the
effect of reducing the return on such Vendor's or such Affiliate's capital as a
consequence of such Vendor's commitment to make Forbearances hereunder to a
level below that which such Vendor or such Affiliate could have achieved but for
such adoption, change or compliance (taking into consideration such Vendor's or
such Affiliates' then existing policies with respect to capital adequacy and
assuming the full utilization of such entity's capital) by any amount deemed by
such Vendor to be material, then such Vendor shall notify Purchaser thereof.
Purchaser agrees to pay to such Vendor the amount of such reduction in the
return on capital as and when such reduction is determined, upon presentation by
such
35.
Vendor of a statement in the amount and setting forth such Vendor's calculation
thereof, which statement shall be deemed true and correct absent manifest error.
In determining such amount, such Vendor may use any reasonable averaging and
attribution methods.
2.16 SYNDICATION. QUALCOMM, Administrative Agent, Collateral Agent and
each Vendor shall have the right from time to time to arrange, or to attempt to
arrange, a syndication of the Forbearances (a "Syndication"); provided that no
more than three (3) full Syndications shall occur per year. Purchaser shall
cooperate with QUALCOMM, Administrative Agent, Collateral Agent and each Vendor
to facilitate any Syndication, and Purchaser agrees, at its expense, to execute
and deliver such documents (including amendments to this Agreement reasonably
requested by QUALCOMM, Administrative Agent or Collateral Agent relating to such
Syndication and which do not impose on Purchaser additional financial
obligations, negative covenants, affirmative covenants, security or credit
support or events of default), furnish such information, attend such meetings,
assist QUALCOMM, Administrative Agent, Collateral Agent and Vendors, and take
any and all other actions as may be reasonably requested by QUALCOMM,
Administrative Agent, Collateral Agent or any Vendor in connection with any
Syndication. QUALCOMM's rights under this SECTION 2.16 shall terminate at such
time as all of the interests of QUALCOMM in any capacity hereunder have been
assigned without recourse.
2.17 REPLACEMENT OF VENDORS. Upon the occurrence of any event giving
rise to the operation of SECTION 2.14(b), SECTION 2.14(c) or SECTION 2.15 with
respect to any Vendor which results in such Vendor charging to the Purchaser
increased costs in excess of those being charged generally by the Vendors
hereunder or results in such Vendor seeking indemnification for Taxes or Other
Taxes, Purchaser shall have the right, if no Event of Default or Unmatured Event
of Default then exists, to replace such Vendor hereunder (the "Replaced Vendor")
with one or more replacement vendors (collectively, the "Replacement Vendor")
reasonably acceptable to Administrative Agent, provided that (i) at the time of
any replacement pursuant to this SECTION 2.17, the Replacement Vendor shall
enter into one or more Assignment and Acceptance pursuant TO SECTION 9.7 (and
with all fees payable pursuant to said SECTION 9.7 to be paid by the Replacement
Vendor) pursuant to which the Replacement Vendor shall acquire all of the
commitments and outstanding Forbearances of the Replaced Vendor and, in
connection therewith, shall pay to the Replaced Vendor in respect thereof an
amount equal to the sum of (A) an amount equal to the principal of, and all
accrued but unpaid interest on, all outstanding Forbearances of the Replaced
Vendor and (B) an amount equal to all accrued, but unpaid, Commitment Fee owing
to the Replaced Vendor pursuant to SECTION 2.8(b), and (ii) all obligations of
the Purchaser owing to the Replaced Vendor (other than those specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid) shall be paid in full to such Replaced
Vendor concurrently with such replacement. Upon the execution of the respective
Assignment Agreement, the payment of amounts referred to in clauses (i) and (ii)
above and, if so requested by the Replacement Vendor, delivery to the
Replacement Vendor of the appropriate Pagares executed by the Purchaser, the
Replacement Vendor shall become a Vendor hereunder and the Replaced Vendor shall
cease to constitute a Vendor hereunder, except with respect to indemnification
provisions applicable to the Replaced Vendor under this Agreement, which shall
survive as to such Replaced Vendor.
36.
SECTION 3. CONDITIONS OF EFFECTIVENESS OF THIS AGREEMENT AND FORBEARANCES.
3.1 CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THE FORBEARANCES. The
effectiveness of this Agreement is subject to the satisfaction or waiver by
QUALCOMM of the following conditions.
(a) PAGARES. Purchaser shall have duly executed before a Chilean
Notary Public and delivered to each Vendor its Pagare in respect of the Deferred
Payment Balance Forbearance.
(b) GUARANTY. There shall have been delivered to Collateral Agent
a Guaranty duly executed by Parent.
(c) SECURITY AGREEMENTS AND ASSIGNMENT OF MATERIAL CONTRACTS. (i)
There shall have been delivered to Collateral Agent the Security Agreements in
form and substance reasonably satisfactory to Collateral Agent, duly executed by
the grantors under such Security Agreements; (ii) all security interests
intended to be created pursuant to the Security Agreements shall have been
created and, where appropriate, registered or other action taken to create a
security interest and Lien over the relevant asset or property in favor of
Collateral Agent, for the benefit of Secured Parties; (iii) all fees and duties
shall have been paid in connection with such registration; and (iv) all such
security interests shall be valid and enforceable and constitute first priority
perfected security interests, and be enforceable against Purchaser or Parent, as
the case may be, and any subsequent lien or (including a judgment lien or),
holder of a fixed or floating charge, or transferee for not for value, in bulk,
by operation of law, for the benefit of creditors, or otherwise, subject in any
case only to Permitted Liens. Collateral Agent shall have received such
assignments of Purchaser's material contracts (A) as Secured Parties may
reasonably request and (B) as Purchaser shall obtain with commercially
reasonable efforts.
(d) SECURITY INTEREST FILINGS. All filings, publications,
notifications and the like, necessary or appropriate to obtain a first priority
perfected security interest in favor of Secured Parties in all assets of
Purchaser, and the Pledged Shares shall have been made.
(e) PROJECT ACCOUNT CONTROL AGREEMENTS. There shall have been
delivered to Collateral Agent the separate written collateral control agreements
with respect to the Project Accounts, each executed by Collateral Agent, Parent
or Purchaser, as applicable, and each depository institution at which Parent or
Purchaser, as applicable, maintains any of the Project Accounts, or each
securities intermediary at which Parent or Purchaser, as applicable, maintains
an investment, brokerage or similar account which holds financial assets (as
defined in Section 8102(a)(9) of the UCC) owned beneficially by Parent or
Purchaser, as applicable, each satisfactory to Collateral Agent.
(f) STOCK PLEDGE AGREEMENT. There shall have been delivered to
Collateral Agent the Stock Pledge Agreement, duly executed by Parent and Michael
Grasty Cousino, together with the certificates representing the Pledged Shares
and Administrative Agent shall have received evidence satisfactory to it of the
registration of the security interest in the Pledged Shares in Purchaser's share
register and of the approval of Parent's shareholder of such security interest.
37.
(g) CREDIT SUPPORT AGREEMENT. There shall have been delivered to
Administrative Agent the Credit Support Agreement duly executed by Guarantor and
QUALCOMM.
(h) OPINIONS OF COUNSEL. The Vendors, Administrative Agent and
Collateral Agent shall have received opinions dated the Effective Date from Gray
Cary Ware & Freidenrich LLP, counsel to Purchaser, Parent and Leap, and opinions
of Grasty, Quintana, Majlis y Cia. ("Grasty"), Chilean counsel to Purchaser,
Parent and Leap, including a consent letter from Grasty accepting the
designation as Process Agent for Purchaser and agreeing not to resign, all in
form and substance satisfactory to Administrative Agent, Collateral Agent and
Vendors.
(i) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of
making the initial Forbearance and also after giving effect thereto (i) there
shall exist no Event of Default or Unmatured Event of Default; and (ii) all
representations and warranties contained herein and in the other Credit
Documents in effect at such time shall be true and correct in all material
respects.
(j) OFFICER'S CERTIFICATE. Administrative Agent and Collateral
Agent shall have received certificates dated such date, signed by the president
and chief financial officer (such certificate and all other certificates
delivered under this Agreement to be in such Person's corporate, not individual,
capacity) of Purchaser and each Guarantor, as applicable, stating that all of
the applicable conditions set forth in this SECTION 3.1 have been satisfied as
of such date.
(k) CORPORATE PROCEEDINGS. All corporate and legal proceedings
and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Credit Documents shall have been
duly approved by Purchaser's Board of Directors and Shareholders and be
reasonably satisfactory in form and substance to Administrative Agent,
Collateral Agent and Vendors, and Vendors shall have received all information
and copies of all certificates, documents and papers, including records of
corporate proceedings and governmental approvals, if any, which Vendors may have
reasonably requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate officers or governmental
authorities.
(l) ADVERSE CHANGE. Nothing shall have occurred, including,
without limitation, the termination of any contract, lease or other agreement,
the incurrence of any damage, destruction or loss (whether or not covered by
insurance), the occurrence of any employee strike, work-stoppage, slow-down or
lock-out or any substantial threat directed to Purchaser or any Guarantor of
Purchaser of any imminent strike, work-stoppage, slow-down or lock-out, which
Vendors shall reasonably determine has, or is reasonably expected to have, a
Material Adverse Effect.
(m) CONSENTS, APPROVALS. Purchaser shall have received the
consents, approvals and releases of all appropriate Governmental Authorities and
all other third parties in connection with the transactions contemplated by the
Equipment Agreements and the Credit Documents and otherwise referred to herein
(the "Governmental Consents"), including, without limitation, (i) all import
licenses for equipment acquired until the date hereof under the Equipment
Agreements and for Deferred Payment Balance Forbearances shall have been amended
to reflect the terms and conditions of this Agreement, (ii) any other exchange
control
38.
approvals and necessary consents required from the Central Bank of Chile in
order for Purchaser to make payments in Dollars hereunder shall have been
obtained, and (iii) all required consents from contractual counterparties of
Parent or Purchaser or their Subsidiaries to the assignment to Collateral Agent
or Vendors, or their designees, of the Collateral and all applicable waiting
periods shall have expired without any action being taken by any competent
Governmental Authority which restrains, prevents or imposes materially adverse
conditions upon the consummation of this Agreement or the Equipment Agreements
or building any System.
(n) ORGANIZATIONAL DOCUMENTATION; ETC. Administrative Agent and
each Vendor shall have received copies of the Articles or Certificates of
Incorporation and Bylaws or Estatutos Sociales of Purchaser, Parent and each of
Purchaser's Subsidiaries, any agreements entered into by any such entity
governing the terms and relative rights of its capital stock and any agreements
among the shareholders of such entity, certified as true and complete by an
appropriate corporate officer or Governmental Authority, and a Certificate of
Good Standing, and, with respect to each Guarantor, a franchise tax good
standing or similar tax good standing certificate issued by the Secretary of
State or appropriate government officials for each province, state or nation in
which any Guarantor is qualified to do business or in which the failure to so
qualify would be reasonably likely to have a Material Adverse Effect, and the
provisions of the foregoing shall be reasonably satisfactory to Vendors.
(o) BOARD AND SHAREHOLDERS RESOLUTIONS. Administrative Agent,
Collateral Agent and Vendors shall have received resolutions of Purchaser's and
each Guarantor's Board of Directors and Shareholders approving and authorizing
the execution, delivery and performance of the Credit Documents to which it is a
party and the transactions contemplated thereby, in form and substance
reasonably satisfactory to Administrative Agent, Collateral Agent and Vendors
and their respective counsel, such resolutions certified as of the initial
Funding Date (unless a Guarantor other than Parent executes the Guaranty at a
later date) by Purchaser's and each Guarantor's Secretary or an Assistant
Secretary, as applicable, as being in full force and effect without modification
or amendment.
(p) INCUMBENCY CERTIFICATES. Administrative Agent, Collateral
Agent and Vendors shall have received signature and incumbency certificates of
Purchaser's, each Guarantor's and each of Purchaser's Subsidiaries' officers
executing this Agreement or the other Credit Documents to which it is or is to
be a party.
(q) FEES, COSTS AND EXPENSES. Purchaser shall have financed
pursuant to the terms of this Agreement or paid to Administrative Agent and each
Vendor all costs, fees and expenses (including, without limitation, the
reasonable legal fees and expenses of Administrative Agent and each Vendor, but
excluding the fees and expenses of Purchaser's financial advisor).
(r) LITIGATION. There shall be no actions, suits or proceedings
pending or threatened with respect to Purchaser or any of its Subsidiaries that
(i) might be expected to have a Material Adverse Effect; or (ii) have a material
adverse effect on the ability of Purchaser and Parent to perform their
obligations under the Equipment Agreements. There shall not exist any judgment,
order, injunction or other restraint issued or filed or a hearing seeking
injunctive relief or other restraint pending or notified with respect to the
performance of Equipment Agreements or the Credit Documents, or the making of
any Forbearance hereunder.
39.
(s) EVIDENCE OF INSURANCE. Collateral Agent and Vendors shall
have received certificates or other evidence of the existence of the insurance
required by this Agreement with loss payee endorsements reasonably satisfactory
to Collateral Agent and Vendors.
(t) NO VIOLATION. The consummation of the transactions
contemplated hereby shall not contravene, violate or conflict with, nor involve
Administrative Agent, Collateral Agent or Vendors in a violation of, any
Requirement of Law, including, without limitation, applicable usury law, and
evidence satisfactory to Administrative Agent and Vendors shall have been
received as to the compliance with applicable usury law including at a minimum
the obtaining of a qualification permit or exemption from the California
Corporations Commissioner.
(u) ADMINISTRATIVE AGENT'S FEE LETTER. Administrative Agent shall
have received the Administrative Agent's Fee Letter, duly executed by Purchaser
and QUALCOMM and accepted by Administrative Agent, together with the payment of
such fees as are set forth in the Administrative Agent's Fee Letter to be paid
on the Effective Date (the payment of which shall be deemed to be a concurrent
condition).
(v) PROJECT ASSETS IN PURCHASER; SITE DOCUMENTS. Collateral Agent
shall have received evidence satisfactory to it that (i) all assets relating to
the Project, including, without limitation, the License and the Equipment
Agreements shall be in full force and effect and fully vested in and owned by
Purchaser (which, with respect to the License shall include appropriate
assurance that the License is in full force and effect notwithstanding any
changes of control of the licensee from and after the date the License was
granted); and (ii) each Site Lease Agreement and, if applicable, Landlord Waiver
in respect thereof, shall have been obtained and delivered to Collateral Agent.
(w) SUBORDINATION AGREEMENT. There shall have been delivered to
Administrative Agent the duly executed Subordination Agreement.
(x) SPANISH TRANSLATION. Administrative Agent shall have received
the translation into Spanish of this Agreement and the other Credit Documents
agreed upon by the parties.
(y) BUSINESS PLAN. Vendors shall have reviewed and approved the
form and substance of the Business Plan.
(z) RELATED PARTY TRANSACTIONS. Vendors shall have reviewed and
approved the form and substance of all transactions by and among Purchaser,
Guarantors and their Affiliates.
(aa) REIMBURSEMENT AGREEMENT. Administrative Agent shall have
received duly executed copies of the Reimbursement Agreement, in form and
substance satisfactory to Administrative Agent and Vendors, and all conditions
precedent to the obligation of the lenders party thereto to make loans to
Purchaser thereunder shall have been satisfied.
40.
(bb) PROCESS AGENT LETTERS. Administrative Agent shall have
received process agent letters from Purchaser and each Guarantor appointing
Process Agents in accordance with SECTION 9.11 (c).
(cc) SHAREHOLDERS' LETTERS. Administrative Agent shall have
received from each shareholder of Purchaser and Parent an agreement in form and
substance satisfactory to Vendors waiving any rights the shareholder may have
under any law with respect to any required annual distribution of profits as
dividends or otherwise.
(dd) CONVERSION TO EQUITY. Administrative Agent shall have
received evidence satisfactory to Vendors that all Sponsor Subordinated
Indebtedness existing on the Effective Date shall be converted to equity.
(ee) ADDITIONAL MATTERS, DOCUMENTS OR INFORMATION. Vendors shall
have received each additional document, instrument, legal opinion or item of
information reasonably requested by any Vendor, including, without limitation, a
copy of any debt instrument, security agreement or other material contract to
which Purchaser, Guarantors or any of Purchaser's Subsidiaries may be a party,
and all corporate and other proceedings, and all documents, instruments and
other legal matters in connection with the transactions contemplated by this
Agreement and the other Credit Documents shall be reasonably satisfactory in
form and substance to Vendors.
All of the agreements, certificates, legal opinions and other documents and
papers referred to in this SECTION 3.1, unless otherwise specified, shall be
delivered to Vendors and shall be reasonably satisfactory in form and substance
to Administrative Agent and Vendors.
3.2 CONDITIONS PRECEDENT TO EFFECTIVENESS OF AND ADDITIONAL
FORBEARANCES. The effectiveness of this Agreement and the obligation of Vendors
to make any Forbearance shall be subject to the further conditions precedent
that:
(a) On the date of such Forbearance the following statements
shall be true:
(i) All representations and warranties contained herein and
in the other Credit Documents in effect at such time shall be true and correct
in all material respects with the same effect (except for any representation and
warranty that speaks only as of a specific date, which shall be true and correct
in all material respects as of such date) as though such representations and
warranties had been made on and as of the date of the making of such
Forbearance; and
(ii) No Event of Default or Unmatured Event of Default has
occurred and is continuing or would result from the making of such Forbearance.
(b) Vendors shall have received such other approvals, opinions or
documents as Vendors may reasonably request in connection with the requested
Forbearance.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
4.1 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Except as set forth on
the Schedules attached hereto and numbered in such manner as to correspond to
the subsections of
41.
this SECTION 4 (which Schedules shall only constitute an exception to the
specific subsection referenced in such Schedule), Purchaser and Guarantors,
jointly and severally, make the following representations and warranties, which
representation and warranties shall be true, accurate and complete as of the
Effective Date and the Operative Date:
(a) CORPORATE ORGANIZATION; STRUCTURE. Purchaser and each
Guarantor are corporations duly incorporated, validly existing and in good
standing under the laws of their respective places of incorporation, have the
power and authority to own their property and carry on their business as now
being conducted, and are qualified as foreign corporations and in good standing
in each jurisdiction where the nature of their business or assets requires such
qualification except where the failure to so qualify would not be reasonably
likely to result in a Material Adverse Effect. The ownership structure of
Purchaser and each Guarantor as of the date hereof is as set forth in SCHEDULE
4.1(a) hereto.
(b) CORPORATE POWER; AUTHORIZATION. The execution, delivery and
performance by Purchaser and each Guarantor which is or may become a party to
any Credit Document are within their corporate powers, have been duly authorized
by all necessary corporate action, and do not (i) contravene such Person's
Estatutos Sociales, certificate of incorporation or bylaws; (ii) violate any law
or any contractual restriction binding on or affecting such Person, except where
such violation would not be reasonably likely to have a Material Adverse Effect;
or (iii) result in or require the creation of any Lien other than Permitted
Liens, upon or with respect to any of the properties of Purchaser or any
Guarantor.
(c) APPROVALS. Except for (i) the amendment to the existing
import license from the Central Bank of Chile with respect to the equipment
imported under the Equipment Agreements and with respect of which there is a
Deferred Payment Balance Forbearance and (ii) the agreed upon translation into
Spanish of this Agreement and the other Credit Documents in order to be enforced
in Chile if executed in a foreign language, no consent, order, authorization,
approval or release or other action by, and no notice to or filing with, any
Governmental Authority, regulatory body or other third party is required for (A)
the due execution, delivery and performance of any Credit Document by Purchaser
or by any Subsidiary of Purchaser; (B) the legality, validity, binding effect or
enforceability of any such Credit Document; (C) in connection with the
transactions contemplated by the Equipment Agreements and the Credit Documents,
including, without limitation, all Governmental Consents and all required
consents from contractual counterparties of Parent or Purchaser or its
Subsidiaries to the assignment to Secured Parties, or their designees, of the
Collateral, including, without limitation, the Pledged Shares, and all
applicable waiting periods relating to any of the foregoing have expired without
any action being taken by any competent Governmental Authority which restrains,
prevents or imposes materially adverse conditions upon the consummation of this
Agreement or the Equipment Agreements.
(d) ENFORCEABILITY. This Agreement is, and each other Credit
Document to which Purchaser, Parent or any Guarantor is or will be a party when
delivered hereunder will be, legal, valid and binding obligations of such Person
enforceable against it in accordance with their respective terms, provided that
the enforceability of any of such documents may be subject to or limited by
bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar
laws relating to or affecting the rights of creditors generally and the
application of equitable principles.
42.
(e) FINANCIAL STATEMENTS/PROJECTIONS. The consolidated balance
sheet of the Purchaser and each Guarantor as at December 31, 1998, and the
related consolidated statements of income and retained earnings of the Purchaser
and each Guarantor for the fiscal year then ended, copies of which have been
furnished to Vendors, fairly present in all material respects the financial
condition of the Purchaser and each Guarantor on a consolidated basis as at such
date and the results of the operations of the Purchaser and each Guarantor for
the period ended on such date, all in accordance with GAAP consistently applied,
and there has been no material adverse change in such condition or operations or
in the assets, liabilities, properties, business or prospects of Purchaser and
each Guarantor taken as a whole or of any Guarantor or Purchaser individually.
All financial forecasts and projections delivered to Administrative Agent or
Vendors as of the date hereof have been reasonably prepared using the best
currently available estimates and judgments of Purchaser and Guarantors.
(f) LITIGATION. Except as listed on SCHEDULE 4.1(f) there is no
pending or, to the best knowledge of Purchaser and each Guarantor, threatened,
action, suit, investigation or proceeding against Purchaser or any Guarantor or
against any of their respective properties or revenues before any court,
governmental department, commission, board, bureau, instrumentality or agency or
arbitrator which might have a Material Adverse Effect.
(g) COMPLIANCE WITH LAWS, OTHER AGREEMENTS. Except as disclosed
on SCHEDULE 4.1(g), neither Purchaser nor any Guarantor is in violation or
default with respect to their respective certificate of incorporation, bylaws or
any applicable laws, rules or regulations where such violation or default would
be reasonably likely to have a Material Adverse Effect, nor is Purchaser nor any
Guarantor in violation of or in default with respect to any order, writ, decree
or judgment of any court or administrative agency or in violation or default
(nor is there any waiver in effect which, if not in effect, would result in a
violation or default) under any mortgage, indenture, lease, contract or other
agreement or instrument binding upon Purchaser or any such Guarantor, where such
violation or default would be reasonably likely to have a Material Adverse
Effect.
(h) EVENT OF DEFAULT. No Event of Default or Unmatured Event of
Default has occurred and is continuing.
(i) COLLATERAL DOCUMENTS. Except for Permitted Liens and Liens
noted in SCHEDULE 4.1(i), the provisions of the Collateral Documents are and
will continue to be effective to create and maintain in favor of Collateral
Agent for the benefit of Vendors a legal, valid and enforceable first priority
perfected security interest in all assets of Purchaser, including, without
limitation, the Pledged Shares. All necessary and appropriate recordings,
registrations and filings have been made in all appropriate public offices, and
all other necessary and appropriate action has been taken so that each
Collateral Document creates an effective Lien with respect to the property,
assets, contract rights and revenues covered thereby to the extent a security
interest may be created therein under applicable laws, prior and superior to all
other Liens except for Permitted Liens, and consents to the creation,
effectiveness, priority and enforcement of such Liens have been obtained from
each of the parties to the Credit Documents and the relevant Governmental
Authorities.
(j) NO SUBORDINATION. The Obligations of each Guarantor under the
Guaranty and Purchaser under this Agreement or under any other contracts or
instruments
43.
executed by Guarantors or Purchaser in connection therewith and herewith are not
subordinated in right of payment to any other obligation of Purchaser or such
Guarantors, including all obligations related to loans extended to the Purchaser
by Leap Wireless International, Inc. and Inversiones Leap S.A. or any of their
Affiliates or Subsidiaries ("Leap Loans").
(k) NO LEGAL BAR. The execution, delivery and performance (in
accordance with their respective terms) of the Credit Documents, the Fee Letter,
the Administrative Agent's Fee Letter and the borrowings hereunder and the use
of the proceeds thereof, will not (i) violate any law or regulations; (ii)
contravene, violate or constitute a breach under any corporate document or
contractual obligations of Purchaser or any of its Subsidiaries or any
Guarantor; and (iii) will not result in, or require, the creation or imposition
of any Lien on any of Purchaser's or any Guarantors' properties or revenues or
any properties or revenues of any of Purchaser's Subsidiaries except pursuant to
the express terms of the Credit Documents.
(l) SUBSIDIARIES. Purchaser and Guarantors do not as of the date
hereof have any Subsidiaries other than as disclosed on SCHEDULE 4.1(l) to this
Agreement.
(m) TAXES. Each of Purchaser and Guarantors has filed or has
caused to be filed all material tax returns which it is required to file or has
obtained extensions for the filing thereof, and each of Purchaser and Guarantors
has paid (i) all taxes shown to be due and payable on said returns or on any
assessments made against it or against any of its property (other than those the
amount or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of Purchaser or Guarantors, as the case may
be) and (ii) all other taxes, fees or other charges imposed on it or imposed on
any of its property by any Governmental Authority (other than those the amount
or validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of Purchaser or Guarantors, as the case may be), and no
claims are being asserted with respect to any such taxes, fees or other charges
(other than those the amount or validity of which is currently being contested
in good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of Purchaser or Guarantors,
as the case may be). No tax Liens have been filed with respect to any such
taxes, fees or other charges (other than those the amount or validity of which
is currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of Purchaser or Guarantors, as the case may be).
(n) OWNERSHIP AND LIENS. Subject to the sale of equipment and
services under the Equipment Agreements, Purchaser owns and has good and
marketable title in fee simple absolute to, or valid leasehold interests in, all
assets comprising any part of the Project and all property necessary and
appropriate to own and operate the Project, all of its properties and assets,
real and personal, including the properties and assets and leasehold interests
reflected in the Financial Statements (other than any properties or assets
disposed of in the ordinary course of business or otherwise in compliance with
this Agreement) and all assets and properties acquired by Purchaser and its
Subsidiaries since the date of the Financial Statements referred to in SECTION
4.1(E) hereof (other than any properties or assets disposed of in the ordinary
course of business or otherwise in compliance with this Agreement), and, except
as set forth on
44.
SCHEDULE 4.1(i), none of the properties and assets owned by Purchaser and its
Subsidiaries and none of its leasehold interests are subject to any Lien, except
Permitted Liens.
(o) INDEBTEDNESS. As of the date hereof, SCHEDULE 4.1(o) is a
complete and correct list of all Indebtedness, credit agreements, indentures,
purchase agreements, guaranties, Capital Leases and other investments,
agreements and arrangements presently in effect providing for or relating to
extensions of credit (including agreements and arrangements for the issuance of
letters of credit or for acceptance financing, but not including non-delinquent
trade credit providing for payment within ninety (90) days of invoice) involving
$100,000 or more in respect of which Purchaser or any Guarantor is in any manner
directly or contingently obligated. The maximum principal or face amounts of the
credits in question, which are outstanding and which can be outstanding, are
correctly stated, and all Liens of any nature given or agreed to be given as
security therefor are correctly described or indicated in such Schedule.
(p) ACCURACY OF INFORMATION FURNISHED; COMPLETE DISCLOSURE.
Neither this Agreement nor any certificate, data, report, statement or other
information furnished to Vendors by or on behalf of Purchaser or any Guarantor
in connection with the transactions contemplated hereby or by the other Credit
Documents contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. There is no fact known to Purchaser or any Guarantor which would be
reasonably likely to have a Material Adverse Effect which has not been disclosed
herein or in such other documents, certificates and statements furnished to
Vendors for use in connection with the transaction contemplated hereby.
(q) NO DEFAULT. Neither Purchaser nor any Guarantor is in default
under or with respect to any Contractual Obligation in any respect which would
be reasonably likely to lead to a Material Adverse Effect.
(r) NO BURDENSOME RESTRICTIONS. No contractual obligation of
Purchaser or any Guarantor and no Requirement of Law, insofar as Purchaser or
any Guarantor may reasonably foresee, are reasonably likely to result in a
Material Adverse Effect.
(s) COMPLIANCE WITH PERSONAL COMMUNICATIONS SERVICES REGULATIONS,
LICENSES AND RELATED AGREEMENTS. Purchaser has been awarded a license to provide
broadband fixed and mobile wireless personal communications services
telecommunication services ("License") for Chile and has obtained and currently
maintains (or will maintain) the License and all other required federal, state,
national, provincial and local licenses related to its provision thereof ("Other
Licenses") in such areas, all of which are summarized on SCHEDULE 4.1(s).
Neither Purchaser nor any Guarantor is in violation of any federal, state,
national, provincial or local statute, rule, regulation or order relating to the
licensing of it as a provider of such services including, but not limited to,
any statute in the Republic of Chile relating to its maintenance of the License
and eligibility therefor, including, but not limited to, those statutes, rules,
regulations or orders governing its control, ownership and affiliation by or
with other persons or entities; its ownership by non-citizens; its cross
ownership of cellular services in various geographical service areas; or the
restrictions on the assignment and transfer of control of the License and the
renewal of the License, violation of which might have a Material Adverse Effect.
Neither Purchaser nor any Guarantor is in default of any term of the License or
any Other Licenses, and there exists no agreement with any non-governmental or
third party Person relating to the pledge
45.
by Purchaser or any Guarantor of the License or Other Licenses as collateral
("Third Party Collateral Agreements"). Neither Purchaser nor any Guarantor has
pledged the License or any Other Licenses as collateral under any license
financing agreement, Third Party Collateral Agreement or any other agreement nor
is the License nor any Other Licenses subject to any claim, Lien, security
interest or other encumbrance.
(t) OTHER REGULATORY COMPLIANCE. Neither Purchaser nor any
Guarantor is an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
Purchaser and Guarantor are not engaged principally, or as one of the important
activities, in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulations T and U of the Board of
Governors of the Federal Reserve System). Purchaser and Guarantor have complied
with all the provisions of the Federal Fair Labor Standards Act and the Labor
Code of the Republic of Chile. Purchaser and Guarantor have not violated any
statutes, laws, ordinances or rules applicable to them, violation of which would
be reasonably likely to have a Material Adverse Effect.
(u) ENVIRONMENTAL CONDITION. None of Purchaser's nor any
Guarantor's properties or assets has ever been used by such Person or their
Affiliates or, to the best of such Person's knowledge, by previous owners or
operators, in the disposal of, or to produce, store, handle, treat, release or
transport, any hazardous waste or hazardous substance other than in accordance
with applicable law; none of Purchaser's or any Guarantor's properties or assets
has ever been designated or identified in any manner pursuant to any
environmental protection statute as a hazardous waste or hazardous substance
disposal site, or a candidate for closure pursuant to any environmental
protection statute; no Lien arising under any environmental protection statute
has attached to any revenues or to any real or personal property owned by
Purchaser or any Guarantor; and Purchaser and Guarantors have never received a
summons, citation, notice or directive from any federal, state, national,
provincial or other Governmental Authority concerning any action or omission by
Purchaser or any Guarantor resulting in the releasing, or otherwise disposing of
hazardous waste or hazardous substances into the environment.
(v) TRANSACTIONS WITH AFFILIATES. As of the date hereof and as of
the Operative Date, SCHEDULE 4.1(v) sets forth each agreement whereby a
transaction with an aggregate value in excess of $200,000 is contemplated
between any Guarantor or Purchaser and an Affiliate of any of them. Each
transaction (regardless of value) of any Guarantor or Purchaser with an
Affiliate of any of them is on fair and reasonable terms no less favorable to
such Guarantor or Purchaser, as applicable, than would be obtained in a
comparable arm's length transaction with a Person not an Affiliate.
(w) YEAR 2000. Purchaser reasonably believes that all computer
applications that are material to its business and operations will on a timely
basis be able to perform properly date-sensitive functions for all dates before,
on and after January 1, 2000 (that is, "Year 2000 Compliant"), except to the
extent that a failure to do so would not have a Material Adverse Effect.
(x) EMPLOYEE BENEFIT PLANS. Neither Purchaser nor any Guarantor
has any employee benefit plans, including retirement plans which have been
established or are
46.
maintained, or to which contributions have been made by or for Purchaser or any
Guarantor. Purchaser and Guarantors are not now and never have been obligated to
contribute to any employee pension benefit plan that is a multi-employer plan
and each is not liable for and is not expected to incur any withdrawal liability
with respect to any multi-employer plan. There are not now, nor have there been,
any medical health-related life insurance or other retiree benefits provided or
expected to be provided by Purchaser for the benefit of retired employees
(including current employees upon their retirement).
(y) STATUS. Purchaser represents that the Forbearances granted
pursuant to this Agreement will qualify as supplier credits for purposes of
income tax laws of the Republic of Chile and, that therefore, QUALCOMM shall (i)
be entitled to receive all payments of principal hereunder free from withholding
taxes of the Republic of Chile and to receive payments of interest and any other
amounts subject to a four percent (4%) withholding tax imposed by the Republic
of Chile and (ii) not be required to register the financial terms and conditions
of this Agreement with the Central Bank of Chile or take any other action under
the laws of the Republic of Chile in order to have access to the formal foreign
exchange market of the Republic of Chile. Except as set forth above and the
payment of the stamp tax payable pursuant to Article 3 of Decree Law No. 3,475
of 1980, as amended, on the deferred purchase price of equipment purchased under
the Equipment Agreements, all payments made by Purchaser under this Agreement
are exempt from all Taxes and Other Taxes imposed by the Republic of Chile.
SECTION 5. COVENANTS.
5.1 AFFIRMATIVE COVENANTS. So long as any of the Obligations shall
remain unpaid or unsatisfied or Purchaser shall have any other obligation to
Administrative Agent or any Vendor hereunder or any Vendor shall have any
commitment hereunder (whichever is later), Parent and Purchaser shall, and shall
cause each of Purchaser's Subsidiaries, at all times to:
(a) COMPLIANCE WITH LAWS, OTHER AGREEMENTS. Comply with respect
to: (i) their respective Estatutos Sociales, certificates of incorporation,
bylaws or any applicable laws, including, without limitation, telecommunication
laws, rules or regulations where failure to so comply would be reasonably likely
to have a Material Adverse Effect; (ii) orders, writs, decrees or judgments of
any court or administrative agency; and (iii) mortgages, indentures, leases,
contracts or other agreements or instruments binding upon Purchaser or its
Subsidiaries, where failure to so comply would be reasonably likely to have a
Material Adverse Effect. Without limiting the generality of the foregoing,
Purchaser and Guarantors hereby covenant, represent and warrant that they will
comply and will not violate any United States of America or foreign laws,
including but not limited to the FCPA, where failure to so comply would be
reasonably likely to have a Material Adverse Effect.
(b) REPORTING REQUIREMENTS. With respect to Parent and Purchaser,
furnish to Administrative Agent and each Vendor each of the following:
(i) As soon as available and in any event within ten (10)
days of the end of each fiscal month of such Person, internal monthly financial
statements prepared by such Person and in form reasonably acceptable to
Requisite Vendors for the accounting period then ended;
47.
(ii) As soon as available and in any event within forty-five
(45) days after the end of each fiscal quarter of such Person, unaudited
Financial Statements for the accounting period then ended, accompanied by a
compliance certificate (with calculations in reasonable detail) signed by such
Person's Chief Financial Officer, certifying (A) that the Financial Statements
attached were prepared in accordance with GAAP and fairly present in all
material respects the financial condition of such Person as of such date (except
as to the absence of notes and subject to year-end adjustments); (B) that the
calculation of the financial covenants with respect to such Financial
Statements, is accurate and as required under this Agreement; (C) that such
Person has taken all steps to pledge all collateral required to be pledged under
the Collateral Documents to which it is a party; and (D) that such officer is
familiar with the terms of this Agreement and that no Event of Default or
Unmatured Event of Default has occurred or is continuing under this Agreement,
or if such an Event of Default or Unmatured Event of Default has occurred and is
continuing, containing a statement as to the nature thereof and the steps being
taken with respect thereto;
(iii) As soon as available and in any event within ninety
(90) days after the end of each fiscal year of such Person, audited Financial
Statements for the immediately preceding fiscal year (provided that
consolidating figures for such Financial Statements may be unaudited), certified
in a manner reasonably acceptable to Vendors by one of the "Big Four" Accounting
Firms or such other independent public accountants acceptable to Vendors, and an
opinion of such accountants relating to such Financial Statements, accompanied
by (A) a compliance certificate (with calculations in reasonable detail), in
form satisfactory to Vendors, signed by such Person's Chief Financial Officer,
certifying (1) that the Financial Statements attached were prepared in
accordance with GAAP and fairly present in all material respects the financial
condition of such Person; (2) that the calculation of the financial covenants
with respect to the Financial Statements, is accurate and as required under this
Agreement; and (3) that such officer is familiar with the terms of this
Agreement and that no Event of Default or Unmatured Event of Default has
occurred or is continuing under this Agreement, or if such an Event of Default
or Unmatured Event of Default has occurred and is continuing, containing a
statement as to the nature thereof and the steps being taken with respect
thereto; (B) copies of any and all management letters relating to the audits of
such Financial Statements (which is audited); (C) a certificate of accountants
of such Person stating that in making the examination necessary for their
certification they have obtained no knowledge of any Event of Default or
Unmatured Event of Default with respect to the financial covenants required
under this Agreement which has occurred and is continuing, or if, in the opinion
of such accountants, an Event of Default or Unmatured Event of Default has
occurred and is continuing, a statement as to the nature thereof; and (D) an
annual budget of Purchaser and its Subsidiaries prepared by Purchaser's Chief
Financial Officer in form and detail reasonably satisfactory to Vendors;
(iv) Promptly after the sending or filing thereof, copies of
all reports which such Person sends to any of their public equity or debt
securities holders and, to the extent not included in such reports, any and all
monthly, quarterly and audited annual financial statements of such Person, any
and all press releases that such Person issues or, as reasonably requested by
Administrative Agent or Vendors, other information (whether or not publicly
filed);
(v) Promptly after any Responsible Officer of such Person
has knowledge or should have known of the occurrence thereof, give written
notice to Administrative Agent and Vendors of: (A) the occurrence of any
Unmatured Event of Default or
48.
Event of Default; (B) any default or event of default under any contractual
obligation of Purchaser or any Guarantor or any force majeure event which would
be reasonably likely to have a Material Adverse Effect; (C) any litigation or
proceeding affecting such Person which might have a Material Adverse Effect; (D)
any change in the ownership of Parent or Purchaser or its Subsidiaries; and (E)
any notice of termination of any of the Equipment Agreements. Each notice
pursuant to this subsection shall be accompanied by a certificate of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Purchaser proposes to take with respect thereto;
(vi) As soon as available and in any event within forty five
(45) days of the end of each fiscal quarter of Purchaser, a list of all material
assets and properties of Purchaser organized by category and specifying the
original book value of such assets in form reasonably acceptable to Requisite
Vendors for the accounting period then ended;
(vii) As soon as available and in any event within seven
(7) days prior to the submission for approval of the board of directors of
Purchaser copies of any proposed revision, amendment, or modification to the
Business Plan; and
(viii) Such other information respecting the condition or
operation (financial or otherwise) of any Guarantor, Purchaser or any of their
Subsidiaries as Administrative Agent and Vendors may from time to time
reasonably request.
(c) INSURANCE. With respect to Purchaser and its Subsidiaries,
maintain insurance with responsible and reputable insurance companies and
associations reasonably satisfactory to Vendors, in such amounts and covering
such risks as is usually carried by companies engaged in similar businesses and
owning similar properties, including, without limitation, general liability,
hazard and business interruption coverages reasonably satisfactory to Vendors.
All policies of insurance shall name Collateral Agent as an additional insured
and loss payee and be endorsed so that if at any time should they be canceled,
or coverage be reduced in a way which materially affects the interests of
Secured Parties, such cancellation or reduction shall not be effective as to
Secured Parties for thirty (30) days after receipt by Administrative Agent and
Collateral Agent of written notice from such insurer of such cancellation or
reduction.
(d) TAXES AND OTHER INDEBTEDNESS. Promptly pay and discharge when
due, and cause each Subsidiary to promptly pay and discharge when due, any and
all Indebtedness (other than Permitted Indebtedness), Liens (other than
Permitted Liens), charges, taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits, or upon any of its properties
prior to the date upon which penalties accrue thereon, and lawful claims which,
if unpaid, are or might become a Lien (other than a Permitted Lien) or material
charge upon its property or otherwise would be reasonably likely to have a
Material Adverse Effect, except for items being contested in good faith where
adequate reserves have been provided to satisfy such item if the contest is not
successful. Without limiting the generality of the foregoing, Purchaser shall
pay all custom duties, taxes and charges when due and shall not be entitled to
agree upon a deferred payment of such duties, taxes and charges; provided,
however, that Purchaser may incur and maintain deferred custom duty obligations
so long as (i) such obligations are for the importation of equipment used in the
business of Purchaser, (ii) the aggregate principal amount thereof does not
exceed at any one time Ten Million Dollars
49.
($10,000,000), and (iii) no such obligation may be rescheduled or refinanced
with the holders of such obligations. Any charge which would affect the
collateral shall be deemed to be material.
(e) MAINTENANCE OF EXISTENCE; CONDUCT OF BUSINESS. Except as
otherwise permitted by this Agreement, preserve and maintain, and cause each of
its Subsidiaries to preserve and maintain, its corporate existence, its business
substantially as contemplated in the Business Plan to be conducted, and all of
its rights, licenses, privileges and franchises necessary or desirable in the
normal conduct of said business. Purchaser shall, and shall cause each of its
Subsidiaries to, conduct its business in an orderly, efficient and regular
manner, keep its properties useful or necessary in its business in good working
order and condition, and from time to time make all needed repairs, renewals and
replacements thereto, so that the efficiency of its properties shall be usefully
preserved. Each Purchaser and Guarantor shall, and shall cause each of its
Subsidiaries to, comply with all applicable orders, writs, decrees and
judgments, with its Estatutos Sociales or articles of incorporation and bylaws,
and with the terms of all mortgages, indentures, leases, contracts and other
agreements and instruments binding upon it or its property, except to the extent
that the failure to comply with such mortgages, indentures, leases, contracts,
agreements or instruments would not be reasonably likely to have a Material
Adverse Effect.
(f) FINANCIAL RECORDS, INSPECTION. Keep and maintain, and cause
each of its Subsidiaries to keep and maintain, accurate books of record and
account in accordance with GAAP consistently applied. On reasonable notice,
which shall in no event need to be longer than five (5) Business Days, each
Purchaser and Guarantor shall permit, and cause each Subsidiary to permit,
Secured Parties or representatives thereof, during customary business hours and
as often as Secured Parties may reasonably request, to inspect, audit and
examine its books and records, to take extracts therefrom, to inspect its
properties and assets and to discuss its affairs, finances and accounts with its
principal officers and its independent public accountants.
(g) CONSENTS, APPROVALS. From time to time obtain all appropriate
governmental and third party consents, approvals and licenses in connection with
the transactions contemplated by the Equipment Agreements and the Credit
Documents and such consents, approvals and licenses shall remain in effect,
including, without limitation, (i) any required consent of any Governmental
Authorities to the assignment for security purposes of the License and all Other
Licenses awarded to Purchaser or its Subsidiaries and the potential foreclosure
by Secured Parties of such security interest and (ii) all required consents from
Purchaser's or its Subsidiaries' contractual counterparties to the assignment to
Collateral Agent or Vendors or their designees of revenue producing agreements
or other material contracts.
(h) MAINTENANCE OF LICENSES AND COMPLIANCE WITH PERSONAL
COMMUNICATIONS SERVICES REGULATIONS AND RELATED AGREEMENTS.
(i) Take any and all action necessary to maintain the
License and Other Licenses for those areas set forth in SCHEDULE 4.1(s)
including, without limitation, payment of applicable Taxes;
(ii) Not, without the prior written consent of Secured
Parties, sell, assign, transfer or partition the License or any Other Licenses,
and if Secured Parties consent to such sale, assignment, transfer or partition,
Purchaser and each Guarantor shall cause each
50.
purchaser, assignee, transferee or partitionee to become a party to or otherwise
specifically assume Purchaser's obligations under the Credit Documents to which
it is a party;
(iii) Not take any action which would violate any Law
relating to the License or any Other Licenses;
(iv) Not, without the prior written consent of Collateral
Agent, Administrative Agent and Requisite Vendors, which consent shall not be
unreasonably withheld, modify or amend the License or modify, amend or enter
into any Other Licenses;
(v) Enter into all interconnection agreements, in form and
substance satisfactory to Collateral Agent, required under or by the License,
the Other Licenses, any Governmental Authority pursuant to its rules,
regulations, orders or other pronouncements;
(vi) Not take any action which would violate any other
agreement relating to the License or any Other Licenses; or
(viiI) Not, without the prior written consent of Secured
Parties, pledge as collateral the License or any Other Licenses, nor subject the
License or any Other Licenses to any claim, Lien, security interest or other
encumbrance.
(i) ENVIRONMENTAL CONDITION. Use its properties and assets in
such a manner as to comply with all environmental protection statutes and shall
not use its properties and assets, or allow its Subsidiaries to use their
properties or assets for the disposal of, or to produce, store, handle, treat,
release or transport, any hazardous waste or hazardous substance other than in
accordance with applicable law; each Purchaser, Guarantor and its Subsidiaries
shall use their best efforts to ensure that (i) none of their properties or
assets will be designated or identified in any manner pursuant to any
environmental protection statute as a hazardous waste or hazardous substance
disposal site, or a candidate for closure pursuant to any environmental
protection statute and (ii) no Lien arising under any environmental protection
statute will attach to any revenues or to any real or personal property owned by
any Guarantor, Purchaser or any of its Subsidiaries.
(j) SITE ACQUISITION.
(i) In connection with site acquisition or renewals thereof
for the placement or installation of infrastructure equipment, enter into a Site
Lease Agreement and Landlord's Waiver;
(ii) Concurrent with entering into any lease or renewal of
real property in connection with the placement or installation infrastructure
equipment, whether or not in the form of a Site Lease Agreement, deliver to
Collateral Agent (A) a copy of such lease, (B) a duly executed Landlord's Waiver
in form suitable for recordation, and (C) if the lessor of such real property is
party to a lending arrangement with respect to such real property, a
non-disturbance agreement, duly executed by the lessor's lender and in form
suitable for recordation, and such other documentation satisfactory to
Collateral Agent;
(iii) Notwithstanding anything to the contrary set forth
elsewhere in this Agreement or in any Equipment Agreement, prior to any
equipment being delivered to
51.
Purchaser for placement or installation on any site acquired by Purchaser
pursuant to the terms of a site lease or the advance of any Forbearances
hereunder in relation to equipment to be delivered to such site, Collateral
Agent shall have delivered to Purchaser written notice of its receipt of the
appropriate Site Lease Agreement and Landlord's Waiver or Collateral Agent shall
have, at the direction of Requisite Vendors, consented to such lease
arrangement.
(k) PROJECT ACCOUNTS. Purchaser and Parent shall ensure that
Collateral Agent at all times enjoys a first priority perfected security
interest in all Project Accounts.
(l) CURRENT LINE OF BUSINESS. Purchaser shall conduct business
only in its Current Line of Business.
(m) SUBSIDIARIES. Notwithstanding SECTION 5.2(l), in the event
that Purchaser acquires any Subsidiary, Purchaser shall (i) execute and deliver
to Administrative Agent, for the benefit of Secured Parties, a Subsidiary Stock
Pledge Agreement, together with the certificates representing the pledged shares
and (ii) cause such Subsidiary to execute and deliver to Administrative Agent,
for the benefit of Secured Parties, a Guaranty and Subsidiary Security
Agreement. Administrative Agent shall have received evidence satisfactory to it
of the registration of the security interest in the shareholders' registry of
such Subsidiary.
(n) NO SUBORDINATION. The Obligations of each Guarantor under the
Guaranty and Purchaser under this Agreement or under any other contracts or
instruments executed by Guarantors or Purchaser in connection therewith and
herewith will at all times rank prior to all present and future unsecured
Indebtedness of any Guarantor or Purchaser, as applicable.
(o) SHAREHOLDERS' LETTERS. Purchaser and Parent shall cause all
and each shareholder of Purchaser or Parent, as applicable, to enter into an
agreement in form and substance satisfactory to Vendors waiving any rights the
shareholder may have under any law with respect to any required annual
distribution of profits as dividends or otherwise; provided, however, that such
agreement shall not abrogate any rights expressly set forth herein.
(p) LIST OF PURCHASER'S ASSETS. Purchaser shall take all
necessary measures requested by Administrative Agent to perfect Vendor's
security interest in all assets and properties reported by Purchaser each
quarter in accordance with SECTION 5.1(b)(vi).
(q) YEAR 2000 COMPLIANCE. Purchaser shall take such actions as
are necessary or prudent to assure that any computer application that is
material to its business will be Year 2000 compliant on a timely basis, except
to the extent that such failure is not reasonably likely to result in a Material
Adverse Effect. Purchaser shall promptly notify Administrative Agent in the
event Purchaser discovers or determines that any computer application (including
those of its material suppliers and vendors) that is material to its or any of
the business will not be Year 2000 compliant on a timely basis, except to the
extent that such failure is not reasonably likely to have a Material Adverse
Effect.
(r) COVENANT TO GIVE SECURITY. Upon the request of the Collateral
Agent following the occurrence and during the continuance of an Event of
Default, Purchaser shall, at Purchaser's expense: (i) within 15 day; after such
request, duly execute and deliver to Collateral Agent mortgages, pledges,
assignments, security agreement supplements, intellectual property
52.
security agreement supplements and other security agreements, as specified by
and in form and substance satisfactory to Collateral Agent, securing payment of
all Obligations of Purchaser under the Credit Documents on all its properties,
(ii) within 30 days after such request, take whatever action (including, without
limitation, the recording of mortgages, the filing of Uniform Commercial Code
financing statements, the giving of notices and the endorsement of notices on
title documents) may be necessary or advisable in the opinion of the Collateral
Agent to vest in Collateral Agent (or any representative of the Collateral
Agent) valid and subsisting Liens on the properties purported to be subject to
the mortgages, pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and security agreements
delivered pursuant to this Section 5.1 (r), enforceable against all third
parties in accordance with their terms, and (iii) at any time and from time to
time, promptly execute and deliver any and all further instruments and documents
and take all such other action as the Collateral Agent may deem necessary or
desirable in obtaining the full benefits of, or in perfecting and preserving the
Liens of, such guaranties, mortgages, pledges, assignments, security agreement
supplements, intellectual property security agreement supplements and security
agreements.
(s) PERFORMANCE OF CREDIT DOCUMENTS, ADDITIONAL EQUIPMENT
DEFERRED PAYMENT AGREEMENT AND REIMBURSEMENT AGREEMENT. Perform and observe, and
cause each of its Subsidiaries to perform and observe, in all material respects
the terms and provisions of each Credit Document, the Additional Equipment
Deferred Payment Agreement and the Reimbursement Agreement to be performed or
observed by it, maintain each such Credit Document, the Additional Equipment
Deferred Payment Agreement and the Reimbursement Agreement in full force and
effect, and enforce such Related Document in accordance with its terms.
(t) COMPLIANCE WITH TERMS OF LEASEHOLDS. Make all payments and
otherwise perform in all respects its obligations in respect of all leases of
real property to which the Purchaser or any Subsidiary is a party to, keep such
leases in full force and effect and not allow such leases to lapse or be
terminated or any rights to renew such leases to be forfeited or cancelled,
notify the Administrative Agent of any default by any party with respect to such
lease and cooperate with the Administrative Agent in all respects to cure any
such default, and cause each of its Subsidiaries to do so; provided, however,
that any failure to make payments, perform obligations, keep leases in full
force and effect, permit a lapse or termination, or notify, shall not constitute
a violation of this sentence if, with respect to all such leases, the
termination of any individual lease or all such leases would not have a Material
Adverse Effect.
(u) OWNERSHIP OF PURCHASER. Except for one share owned by Michael
Grasty Cousino, which shall be pledged to Collateral Agent, Parent shall at all
times own one hundred percent (100%) of the Capital Stock, options, warrants and
other similar rights of Purchaser on a fully diluted basis.
(v) COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT. Upon the
request of Purchaser and prior to the incurrence of any Eligible Secured Debt,
the parties hereto agree to negotiate in good faith and enter in the Collateral
Agency and Intercreditor Agreement, after which the collateral agent established
under such agreement shall hold the collateral securing the Obligations as well
as the indebtedness arising under such Eligible Secured Debt.
53.
(w) FURTHER ASSURANCES. In addition to the obligations and
documents which this Agreement expressly requires Purchaser or any Guarantor to
execute, acknowledge, deliver and perform, Purchaser and each Guarantor shall
execute and acknowledge (or cause to be executed and acknowledged) and deliver
to Administrative Agent or Collateral Agent all documents, and take all actions,
that may be reasonably requested by Secured Parties from time to time to confirm
the rights created or now or hereafter intended to be created under the Credit
Documents, to protect and further the validity, priority and enforceability of
the Liens created under the Collateral Documents, to subject to the Liens
created under the Collateral Documents any property intended by the terms of any
Credit Document to be covered by the Collateral Documents, or otherwise to carry
out the purposes of the Credit Documents and the transactions contemplated
hereunder and thereunder.
5.2 NEGATIVE COVENANTS. So long as any of the Obligations shall remain
unpaid or unsatisfied or Purchaser shall have any other obligations to make
payments to Administrative Agent or Vendors hereunder or Vendors shall have any
commitment hereunder (whichever is later), Purchaser shall not, and shall not
permit any Subsidiary to, and, only as to each Section of this SECTION 5.2
expressly applying to Guarantors, each Guarantor shall not, directly or
indirectly, at any time, without the prior written consent of Requisite Vendors,
which consent may, except where specified to the contrary herein, be withheld in
each Vendor's sole and absolute discretion:
(a) ENCUMBRANCES, LIENS, ETC. Except for Liens in favor of
Secured Parties, Permitted Liens and Liens disclosed on SCHEDULE 4.1(I), neither
any Guarantor, Purchaser nor any of Purchaser's Subsidiaries shall create,
incur, assume or suffer to exist any mortgage, deed of trust, pledge, Lien,
security interest, assignment, deposit arrangement or other preferential
arrangement, charge or encumbrance (including, without limitation, any
conditional sale or other title retention agreement or finance lease) of any
nature, upon or with respect to any of the properties, now owned or hereafter
acquired by Purchaser.
(b) INDEBTEDNESS. Neither any Guarantor, Purchaser nor any of
Purchaser's Subsidiaries shall contract, create, incur, assume or suffer to
exist any Indebtedness, except the following ("Permitted Indebtedness"):
(i) Indebtedness incurred pursuant to the Equipment
Agreements, Additional Equipment Deferred Payment Agreement and Reimbursement
Agreement;
(ii) Capital Leases (exclusive of Capital Leases
arising as a result of the sale and leaseback of towers and sites) of Purchaser
and Indebtedness of Purchaser incurred pursuant to purchase money mortgages or
security interests permitted by SECTION 5.2(A), provided that the aggregate
amount of all such Capitalized Leases entered into after the Effective Date plus
the principal amount of all Indebtedness secured by such purchase money
mortgages or security interests shall not exceed at any time outstanding the
greater of (i) $15,000,000 or (ii) two percent (2%) of the sum of Total Debt and
Contributed Capital at the time of incurrence thereof;
(iii) other Indebtedness outstanding prior to, and to
remain outstanding after, the Effective Date to the extent specified in SCHEDULE
4.1(O);
54.
(iv) Contingent Obligations of Purchaser arising with
respect to customary indemnification obligations incurred in connection with
permitted asset dispositions;
(v) unsecured Indebtedness of Purchaser taking the
form of a working capital revolving credit facility made by an independent third
party, provided that (A) the principal amount of such Indebtedness does not at
any time exceed $5,000,000 and has a maturity of at least one year, and (B)
after the incurrence thereof the financial covenants set forth in SECTION 5.3
shall be satisfied on the last day of the fiscal quarter last ended for which
financial statements have been delivered in accordance with SECTION 5.1(B), on a
pro forma basis as if such unsecured Indebtedness and any other Indebtedness
which was incurred since such last day was incurred and outstanding on such last
day, and any Indebtedness which was paid after such last day was not outstanding
on such last day;
(vi) Indebtedness incurred by Parent ("High Yield
Debt"), provided that (A) no principal installments of such High Yield Debt are
scheduled to be due and payable (or are otherwise required to be paid) prior to
one year after the Final Maturity Date, (B) such High Yield Debt is not subject
to any Lien on any property or assets of Purchaser, (C) following the issuance
of such High Yield Debt, the financial covenants set forth in SECTION 5.3 shall
be satisfied as of the last day of the fiscal quarter last ended for which
financial statements have been delivered in accordance with Section 5.1(B), on a
pro-forma basis, giving effect to any Contributed Capital after the last day of
such fiscal quarter, as if such High Yield Debt and any other Indebtedness which
was incurred since such last day were issued and outstanding on such last day,
and any Indebtedness which was paid after such last day was not outstanding on
such last day, (D) such High Yield Debt is not guaranteed by Purchaser or any
Guarantor, (E) the initial cash interest payments required under such High Yield
Debt do not precede the first Interest Payment Date for Forbearances which are
not capitalized hereunder, and (F) such proceeds of High Yield Debt are
immediately contributed to Purchaser;
(vii) Unsecured Indebtedness incurred in connection
with the financing of wireless telecommunication handsets, subject to the
restrictions contained in SECTION 5.2(A);
(viii) Contingent Obligations not otherwise permitted
under this Section 5.2(B) to the extent not exceeding in the aggregate at any
time outstanding $5,000,000;
(ix) Eligible Secured Debt, provided that (A) Other
Senior Indebtedness shall require prior written consent of Requisite Vendors,
which consent shall not be unreasonably withheld, and (B) after any nonrecourse
assignment of Forbearances by QUALCOMM in an amount not less than the lesser of
Twenty Million Dollars ($20,000,000) or the entire amount of the Forbearances
then outstanding, Other Vendor Indebtedness shall require the prior written
consent of Requisite Vendors (exclusive of QUALCOMM and its Affiliates), which
consent shall not be unreasonably withheld;
(x) Sponsor Subordinated Indebtedness and Third Party
Subordinated Indebtedness; and
(xi) Other unsecured Indebtedness of a type not
described above in the aggregate at any one time not exceeding One Hundred
Thousand Dollars ($100,000.00).
55.
(c) CONSOLIDATION/MERGER/CHANGE OF CONTROL, MANAGEMENT OR
OWNERSHIP. Except with the consent of all Vendors, which consent shall not be
unreasonably withheld, neither any Guarantor, Purchaser nor any of Purchaser's
Subsidiaries shall consolidate with or merge into any other Person or permit any
other Person to merge into it or permit a Change of Control to occur, or enter
into any agreement to do any of the foregoing.
(d) DISPOSITION OF ASSETS. Neither any Guarantor, Purchaser
nor any of Purchaser's Subsidiaries shall (i) cause or allow to occur an Asset
Sale (ii) sell, transfer, lease or otherwise dispose of any assets or rights to
its Subsidiaries, or (iii) permit any assets that are used or useful in the
business of Purchaser or exploitation of the License to be owned or in the
possession of Parent or any other Affiliates of Purchaser.
(e) INVESTMENTS. Neither any Guarantor, Purchaser nor any of
Purchaser's Subsidiaries shall make or permit to remain outstanding any
Investment other than (i) Investment Grade Instruments and (ii) loans and
advances to employees for business expenses, relocation, medical purposes and
other purposes in the ordinary course of business, in the aggregate not to
exceed One Hundred Thousand Dollars ($100,000) at any time outstanding.
(f) CAPITAL EXPENDITURES. Neither any Guarantor, Purchaser nor
any of Purchaser's Subsidiaries shall incur or make Capital Expenditures in any
fiscal year (i) in an aggregate amount in excess of the amount permitted under
SECTION 5.3(H) hereof or (ii) if the incurrence of such Capital Expenditure
would otherwise result in or cause an Event of Default or an Unmatured Event of
Default.
(g) LIMITATION ON PREPAYMENTS. Neither any Guarantor,
Purchaser nor any of Purchaser's Subsidiaries shall make or commit to make any
prepayment, sinking fund payments (or payments in the nature thereof) or
redemptions of any Indebtedness, including the Leap Loans, except (i)
prepayments of any amounts payable hereunder and permitted to be paid hereby;
and (ii) prepayments of trade debt made within forty-five (45) days of the date
such payment is otherwise to be made.
(h) TRANSACTIONS WITH AFFILIATES. Neither any Guarantor,
Purchaser nor any of Purchaser's Subsidiaries shall enter into any transaction,
including, without limitation, the purchase, sale or exchange of property or the
rendering of any service, with any Affiliate, except in the ordinary course, and
pursuant to the reasonable requirements, of its business or upon fair and
reasonable terms no less favorable to it than it would obtain in a comparable
arm's-length transaction with a Person not an Affiliate.
(i) DIVIDENDS; DISTRIBUTIONS; INTEREST ON THIRD PARTY
SUBORDINATED INDEBTEDNESS, SPONSOR SUBORDINATED INDEBTEDNESS. Neither any
Guarantor, Purchaser nor any of Purchaser's Subsidiaries shall declare or pay
cash dividends upon any of its stock or distribute any of its property or
redeem, retire, purchase or acquire, directly or indirectly, any of its Capital
Stock, or make any change in its capital structure or make any payments of
interest on the Third Party Subordinated Indebtedness and Sponsor Subordinated
Indebtedness, including the Leap Loans; provided, however, that (i) Purchaser
may receive dividends or other distributions made by a Subsidiary of Purchaser
to Purchaser and (ii) Parent may receive dividends in the amount necessary and
to the extent such amount is actually used to pay interest only under the High
Yield Debt.
56.
(j) LIMITATION ON MODIFICATIONS. Purchaser will not issue any
additional Capital Stock. During any period fiscal quarter following a fiscal
quarter during which Purchaser's EBITDA shall have been negative and, except
with respect to Parent's issuance of new Capital Stock or debt otherwise
permitted hereunder, on terms reasonably acceptable to the Requisite Vendors,
neither any Guarantor, Purchaser nor any of Purchaser's Subsidiaries shall
amend, modify or change any of its (i) organizational documents in a way that
may have the effect of altering its capital structure or increasing its
liabilities; (ii) indentures or agreements pertaining to other Indebtedness or
preferred stock of Purchaser or any Guarantor; (iii) site leases approved by
Collateral Agent; or (iv) other material agreement of Purchaser or any
Guarantor, the absence of which would have a Material Adverse Effect on
Purchaser or any Guarantor, or change its fiscal year or change its name, or
enter into any new lines of business which would materially alter the nature of
the business of Purchaser or Purchaser and Guarantors taken as a whole.
(k) COMPLIANCE. Neither any Guarantor, Purchaser nor any of
Purchaser's Subsidiaries shall become an "investment company" or a Person
controlled by an "investment company", within the meaning of the Investment
Company Act of 1940, or become principally engaged in, or undertake as one of
its important activities, the business of extending credit for the purpose of
purchasing or carrying margin stock, or use the proceeds of any Forbearance for
such purpose or violate any law or regulation, in each case which violation
would be reasonably likely to have a Material Adverse Effect.
(l) NO SUBSIDIARIES. Create or permit to exist any
Subsidiaries of Purchaser.
(m) ACCOUNTING CHANGES. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices, except as required by generally accepted accounting
principles, this Agreement or applicable law, or (ii) fiscal year.
(n) PARTNERSHIPS, ETC. Neither any Guarantor, Purchaser nor
any of Purchaser's Subsidiaries shall become a general partner in any general or
limited partnership or joint venture, or permit any of its Subsidiaries to do
so.
5.3 FINANCIAL COVENANTS OF PURCHASER. From and after the Effective Date
and so long as any of the Obligations shall remain unpaid or unsatisfied or
Purchaser shall have any other obligation to make payments to Administrative
Agent or Vendors hereunder or any Vendor shall have any commitment hereunder,
Parent and Purchaser shall not, with respect to Parent, Purchaser and
Purchaser's Subsidiaries on a consolidated basis, without the written consent of
Requisite Vendors, which consent may be withheld in each Vendor's sole and
absolute discretion:
(a) NET DEBT TO TOTAL CAPITALIZATION. Until the Total Debt to
EBITDA Threshold is achieved, as of any day, permit the ratio of Net Debt to
Total Capitalization to exceed 0.65:1.00.
(b) SENIOR DEBT TO TOTAL CAPITALIZATION. Until the Total Debt
to EBITDA Threshold is achieved, as of any day, permit the ratio of Senior Debt
to Total Capitalization of Purchaser and its consolidated Subsidiaries to exceed
0.55:1.00.
57.
(c) MINIMUM REVENUES. As of the last day of each fiscal
quarter set forth below, permit gross revenues for the four (4) fiscal quarters
then ending to be less than the amounts set forth below with respect to the
indicated fiscal quarter:
[Download Table]
FISCAL QUARTER ENDING AMOUNT
--------------------- ------
March 31, 2000 $21,200,000
June 30, 2000 $27,400,000
September 30, 2000 $34,100,000
December 31, 2000 $42,100,000
March 31, 2001 $51,000,000
June 30, 2001 $60,500,000
September 30, 2001 $70,000,000
December 31, 2001 $79,500,000
(d) MINIMUM EBITDA. As of the last day of each fiscal quarter
and year as set forth below, permit EBITDA for the most recently completed four
(4) fiscal quarters to be less than the amounts set forth below for the
respective fiscal quarters and years:
[Download Table]
FISCAL QUARTER ENDING AMOUNT
--------------------- ------
March 31, 2002 $1,000,000
June 30, 2002 $9,900,000
September 30, 2002 $17,200,000
December 31, 2002 $24,600,000
[Download Table]
FISCAL QUARTER ENDING AMOUNT
--------------------- ------
December 31, 2002 $24,600,000
December 31, 2003 $51,800,000
December 31, 2004 $75,800,000
December 31, 2005 $95,400,000
After December 31, 2005 $95,400,000
(e) TOTAL DEBT TO EBITDA. As of the last day of each fiscal
quarter and year set forth below, permit the ratio of Total Debt to EBITDA for
the most recently completed four (4) fiscal quarters to be negative nor to
exceed the ratio set forth opposite such period:
58.
[Download Table]
FISCAL QUARTER ENDING RATIO
--------------------- -----
September 30, 2002 18.0 to 1.0
December 31, 2002 12.0 to 1.0
March 31, 2003 8.0 to 1.0
June 30, 2003 6.0 to 1.0
[Download Table]
FISCAL QUARTER ENDING RATIO
--------------------- -----
December 31, 2003 5.5 to 1.0
December 31, 2004 4.0 to 1.0
December 31, 2005 4.0 to 1.0
After December 31, 2005 4.0 to 1.0
(f) EBITDA TO CASH INTEREST EXPENSE. As of the last day of
each fiscal quarter and year set forth below, permit the ratio of EBITDA to Cash
Interest Expense for the most recently completed four (4) fiscal quarters to be
less than the ratio set forth opposite such period:
[Download Table]
FISCAL QUARTER ENDING RATIO
--------------------- -----
March 31, 2002 Greater than 0.01
June 30, 2002 0.40 to 1.0
September 30, 2002 0.8 to 1.0
December 31, 2002 1.10 to 1.0
[Download Table]
FISCAL QUARTER ENDING RATIO
--------------------- -----
December 31, 2003 2.0 to 1.0
December 31, 2004 2.0 to 1.0
After December 31, 2004 2.0 to 1.0
(g) PRO FORMA REQUIRED DEBT SERVICE. As of the last day of
each fiscal quarter or year, permit the ratio of EBITDA for the most recently
completed four (4) fiscal quarters to Pro Forma Required Debt Service to be less
than the ratio set forth opposite such period:
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[Download Table]
FISCAL QUARTER ENDING RATIO
--------------------- -----
March 31, 2002 0.15 to 1.0
June 30, 2002 0.35 to 1.0
September 30, 2002 0.50 to 1.0
December 31, 2002 0.65 to 1.0
[Download Table]
FISCAL YEAR ENDING RATIO
------------------ -----
December 31, 2003 0.65 to 1.0
December 31, 2004 0.8 to 1.0
December 31, 2005 0.9 to 1.0
After December 31, 2005 1.0 to 1.0
(h) CAPITAL EXPENDITURES. As of the last day of each fiscal
year set forth below, permit the Capital Expenditures for the most recently
completed four (4) fiscal quarters to be more than the amount set forth opposite
such period:
[Download Table]
FISCAL YEAR ENDING AMOUNT
------------------ ------
December 31, 1999 $85,000,000
December 31, 2000 $52,000,000
December 31, 2001 $37,000,000
December 31, 2002 $31,000,000
December 31, 2003 $28,000,000
December 31, 2004 $26,000,000
December 31, 2005 $23,000,000
December 31, 2006 $21,000,000
(i) WIRELESS SUBSCRIBERS. As of the following dates maintain
Wireless Subscribers of not less than the number opposite such date:
[Download Table]
QUARTER ENDING NUMBER
-------------- ------
March 30, 2000 71,500
June 30, 2000 92,000
60.
[Download Table]
QUARTER ENDING NUMBER
-------------- ------
September 30, 2000 112,500
December 30, 2000 133,000
March 31, 2001 152,500
June 30, 2001 172,000
September 30, 2001 191,500
December 31, 2001 211,000
[Download Table]
FISCAL YEAR ENDING NUMBER
------------------ ------
December 31, 2002 285,000
December 31, 2003 357,000
December 31, 2004 420,000
December 31, 2005 474,000
After December 31, 2005 474,000
SECTION 6. EVENTS OF DEFAULT.
6.1 EVENTS OF DEFAULT. The occurrence of any one or more of the
following events shall constitute an Event of Default:
(a) A failure by Purchaser to pay (whether by scheduled
maturity, required prepayment, by acceleration or otherwise) the following
amounts (i) any principal of any Forbearance when due, or (ii) any interest on
any Forbearance, any other amounts owing hereunder or under any other Credit
Document or any other amounts constituting Obligations within five (5) days
after such interest or other amounts first becomes due; or
(b) Any representation or warranty made by Purchaser or any
Guarantor (or any of their officers), under or in connection with this Agreement
or any other Credit Document shall prove to have been incorrect in any material
respect when made or deemed made; or
(c) Purchaser, any Subsidiary of Purchaser or any Guarantor
shall fail to perform or observe any other term, covenant or agreement on its
part to be performed or observed and contained in this Agreement or any other
Credit Document and such failure shall not have been remedied within thirty (30)
days after the date on which written notice thereof shall have been received by
Purchaser from Administrative Agent (provided, however, that the breach of
SECTIONS 5.1(C), (H) (N) (O) and (P), and SECTIONS 5.2, 5.3 and 5.4 hereof
shall, immediately upon any such breach, constitute an Event of Default); or
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(d) Purchaser, any of its material Subsidiaries or any
Guarantor shall fail to pay any of their Material Indebtedness (excluding
Indebtedness incurred under this Agreement) or any interest or premium thereon,
when due (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Material Indebtedness; or any other default under any agreement or instrument
relating to any such Material Indebtedness, or any other event, shall occur and
shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of such Material
Indebtedness; or any such Material Indebtedness shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled required
prepayment or prepayments required by the terms of such Indebtedness upon a sale
of assets) prior to the stated maturity thereof. As used in this SECTION 6.1,
"Material Indebtedness" shall mean (i) during any fiscal quarter of Purchaser
following a fiscal quarter during which Purchaser's EBITDA was less than zero
(0), any Indebtedness with a principal amount in excess of One Million Dollars
($1,000,000) and (ii) in all other cases, any Indebtedness with a principal
amount in excess of Five Million Dollars ($5,000,000); provided, however, that
if an Event of Default does not exist but would exist under this SECTION 6.1(D)
if the threshold set forth in clause (ii) of this sentence were applicable, then
an Event of Default shall arise on the last day of the first fiscal quarter
during which Purchaser's EBITDA was less than zero (0) and such failure or
condition which would give rise to such Event of Default is continuing;
(e) Purchaser, any Guarantor or any of their Subsidiaries
shall (i) apply for or consent to the appointment of a receiver, trustee,
liquidator or custodian of itself or of all or a substantial part of its
property, (ii) be unable, or admit in writing its inability, to pay its debts
generally as they mature, (iii) make a general assignment for the benefit of its
or any of its creditors, (iv) be dissolved or liquidated in full or in part, (v)
become insolvent (as such term may be defined or interpreted under any
applicable statute), (vi) commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or consent to any such relief or to the appointment of or taking possession of
its property by any official in an involuntary case or other proceeding
commenced against it, or (vi) take any action for the purpose of effecting any
of the foregoing; or
(f) Proceedings for the appointment of a receiver, trustee,
liquidator or custodian of Purchaser, any Guarantor or any of their Subsidiaries
or of all or a substantial part of any of their respective property, or an
involuntary case or other proceedings seeking liquidation, reorganization or
other relief with respect to Purchaser, any Guarantor or any of their
Subsidiaries, under any bankruptcy, insolvency or other similar law now or
hereafter in effect shall be commenced and an order for relief entered or such
proceeding shall not be dismissed or discharged within forty five (45) days of
commencement; or
(g) There occurs, in relation to Purchaser, any Guarantor or
any of their Subsidiaries, in any country or territory in which they carry on
business or to the jurisdiction of whose courts any part of their assets are
subject, any event which in that country or territory corresponds with, or has
an effect equivalent or similar to, any of those mentioned in SECTION 6.1(E) or
SECTION 6.1(F) (subject to the cure period stated therein); or
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(h) Purchaser, any of its Subsidiaries or any Guarantor shall
fail to pay and discharge any judgment or order, or levy of any attachment,
execution or other process against its assets and such judgment, order, levy or
other process shall remain undischarged, unvacated, unbonded or unstayed for a
period of forty five (45) days or in any event five (5) days prior to the time
of any proposed sale under any such judgment or levy; or
(i) If any of the Equipment Agreements or the Other Project
Documents, including, without limitation, the Security Agreements, shall for any
reason be unenforceable or cease to be in full force and effect or shall cease
to give Secured Parties the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, a first priority perfected
security interest in, and Lien on, all of the collateral subject thereto) in
favor of Secured Parties, superior to and prior to the rights of all third
Persons and subject to no other Liens (except to the extent expressly permitted
herein or therein), or any Guarantor, Purchaser or any of their Subsidiaries
shall fail to perform or observe any term, covenant, condition, agreement or
obligation on its part to be performed or observed pursuant thereto or any
Guarantor, Purchaser or any of their Subsidiaries party to any of such foregoing
documents shall deny or disaffirm such Person's obligations thereunder; or
(j) Purchaser shall abandon the development, ownership or
operation of the Project or shall suspend all or part of its business operations
material to the conduct of Purchaser's business, which abandonment and
suspension shall be material to the operation of the System as a whole; or
(k) There shall have occurred any act or series of acts
attributable to a Governmental Authority which (i) has the effect of depriving
Vendors of any rights (the loss of which would not be de minimis) as creditors
in respect of this Agreement or any other Credit Document, or (ii) attempts to
condemn, confiscate, seize, nationalize or expropriate the ownership or control
of all or any substantial part of the assets of Purchaser or any Governmental
Authority shall require a material modification or revocation of the License or
Other Licenses, and which condemnation, confiscation, seizure, nationalization
or expropriation shall be material to the operation of the System as a whole; or
(l) Any law, order, decree or regulation shall impose any
restriction on (i) the lawful transfer of Dollars by Purchaser from the Republic
of Chile to Administrative Agent (and from Administrative Agent to any other
Person or locale whether within or outside of the Republic of Chile), (ii) the
conversion of (A) Dollars to Pesos or (B) Pesos to Dollars, or (iii) the
purchase of Dollars in the formal foreign exchange market of the Republic of
Chile to pay the Forbearances, which restriction might have an adverse effect on
the ability of Purchaser to pay the Forbearances as scheduled or upon an
acceleration after an Event of Default; or
(m) An event shall have occurred which would be reasonably
likely to result in a Material Adverse Effect.
6.2 REMEDIES. Immediately and without notice upon the occurrence of an
Event of Default specified in SECTION 6.1(E), 6.1(F) or 6.1(G) of this
Agreement, or, at the option of Requisite Vendors, upon the occurrence of any
other Event of Default, (a) all amounts and obligations owed to Administrative
Agent, Collateral Agent and Vendors pursuant to this Agreement, the Notes,
Pagares and the other Credit Documents shall immediately become due
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and payable (including without limitation any unpaid Commitment Fee); (b) the
obligation of Vendors to make any Forbearance under this Agreement or the other
Credit Documents and all commitments hereunder shall be terminated, all without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived; and (c) without the expiration of any other period of grace,
Administrative Agent, Collateral Agent or any Vendor may immediately enforce
payment of the amounts owed it hereunder and exercise any and all other rights
and remedies granted to it by this Agreement or any of the other Credit
Documents or at law, in equity or otherwise.
6.3 UNMATURED EVENTS OF DEFAULT. Upon the occurrence of any Unmatured
Event of Default, the obligation of Vendors to make any Forbearances under this
Agreement or the other Credit Documents shall be suspended until such event is
either waived by Requisite Vendors or, to the extent allowed hereunder, cured.
SECTION 7. ADMINISTRATIVE AGENT.
7.1 APPOINTMENT of QUALCOMM INCORPORATED as ADMINISTRATIVE AGENT.
Vendors hereby designate and appoint QUALCOMM Incorporated as Administrative
Agent to act in an administrative function as specified under this Agreement and
the other Credit Documents and irrevocably authorizes Administrative Agent to
take such actions on its behalf under and subject to the provisions of this
Agreement and each other Credit Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of this Agreement or
any other Credit Document, together with such other powers, in the judgment of
Administrative Agent, as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement or any other Credit
Document, Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein or therein, or any fiduciary
relationship with any Vendor, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against Administrative
Agent.
7.2 RIGHTS AND POWERS AS VENDOR. The bank serving as Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Vendor as any other Vendor and may exercise the same as though it were not
Administrative Agent, and such bank and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in any
kind of business with, Purchaser or any Subsidiary or other Affiliate of any
such Person and any Person who may do business with or own securities of
Purchaser or any such Subsidiary or Affiliate, all as if such bank were not
Administrative Agent and without any duty to account therefor to the Vendors or
any other Person.
7.3 DELEGATION OF DUTIES BY ADMINISTRATIVE AGENT. Administrative Agent
may execute any of its duties under this Agreement by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Administrative Agent shall not
be responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
7.4 LIABILITY OF ADMINISTRATIVE AGENT. None of Administrative
Agent-Related Persons (defined below) shall (a) be liable for any action taken
or omitted to be taken by any of them under or in connection with this Agreement
or any other Credit Document (except for its
64.
own gross negligence or willful misconduct), or (b) be responsible in any manner
to any of the Vendors for any recital, statement, representation or warranty
made by Purchaser or any Affiliate of Purchaser, or any officer thereof,
contained in this Agreement or in any other Credit Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Credit Document, or for the value of any Collateral or
the validity, priority, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any Credit Document, or for any failure of
Purchaser or any other party to any Credit Document to perform its obligations
hereunder or thereunder. No Administrative Agent-Related Person shall be under
any obligation to any Vendor to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Credit Document, or to inspect the Properties, books or
records of Purchaser or any of Purchaser's Affiliates. "Administrative
Agent-Related Persons" shall mean Administrative Agent and any successor
Administrative Agent, together with their respective Affiliates, and the
employees, agents and attorneys-in-fact of such persons.
7.5 RELIANCE BY ADMINISTRATIVE AGENT.
(a) Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to
Purchaser), independent accountants and other experts selected by Administrative
Agent. Administrative Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other Credit Document unless it
shall first receive such advice or concurrence of Requisite Vendors as it deems
appropriate and indemnification for all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action,
provided, however, that Administrative Agent shall be justified in refusing to
take action if such action is in violation of law or the terms of this Agreement
or any other Credit Document, based on the advise of Administrative Agent's
legal counsel. Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Credit
Document in accordance with a request or consent of Requisite Vendors and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all of Vendors.
(b) For purposes of determining compliance with the conditions
precedent specified in SECTION 3, each Vendor that has executed this Agreement
or shall hereafter execute and deliver an Assignment and Acceptance in
accordance with SECTION 9.7 shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter either sent by
Administrative Agent to such Vendor for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to such Vendor, unless an officer of Administrative
Agent responsible for the transactions contemplated by the Credit Documents
shall have received notice from such Vendor prior to the initial borrowing
specifying its objection thereto and either such objection shall not have been
withdrawn by notice to Administrative Agent to that effect or such Vendor shall
not have made available to Administrative Agent its ratable portion of such
borrowing
65.
7.6 NOTICE OF DEFAULT. Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Event of Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to Administrative Agent on behalf and for the benefit of Vendors, unless
Administrative Agent shall have received written notice from a Vendor or
Purchaser referring to this Agreement, describing such Event of Default and
stating that such notice is a "notice of default." In the event that
Administrative Agent receives such a notice, Administrative Agent shall give
notice thereof to each Vendor. Administrative Agent shall take such action with
respect to such Event of Default as shall be requested by Requisite Vendors in
accordance with SECTION 6; provided, however, that unless and until
Administrative Agent shall have received any such request, Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Event of Default as it shall deem in the best
interest of Vendors.
7.7 NON-RELIANCE BY VENDORS. Each Vendor expressly acknowledges that
none of Administrative Agent-Related Persons has made any representation or
warranty to it and that no act by Administrative Agent hereafter taken,
including any review of the affairs of Purchaser or Guarantors, shall be deemed
to constitute any representation or warranty by Administrative Agent to such
Vendor. Each Vendor confirms to Administrative Agent that it has not relied, and
will not rely hereafter, on Administrative Agent to check or inquire on such
Vendor's behalf into the adequacy, accuracy or completeness of any information
provided by Purchaser or Guarantors or any other Person under or in connection
with the Credit Documents or the transactions herein contemplated (whether or
not the information has been or is hereafter distributed to such Vendor by
Administrative Agent). Each Vendor represents to Administrative Agent that it
has, independently and without reliance upon Administrative Agent and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
Property, financial and other condition and creditworthiness of Purchaser or
Guarantors, and all applicable regulatory laws relating to the transactions
contemplated thereby, and made its own decision to enter into this Agreement and
the other Credit Documents and extend credit to Purchaser under and pursuant to
this Agreement. Each Vendor also represents that it will, independently and
without reliance upon Administrative Agent and based on such documents and
appraisals and decisions in taking or not taking action under this Agreement and
the other Credit Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of Purchaser or Guarantors.
Except for notices, reports and other documents expressly herein required to be
furnished to Vendors by Administrative Agent, Administrative Agent shall not
have any duty or responsibility to provide to any Vendor any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of Purchaser or Guarantors which may
come into the possession of any Administrative Agent-Related Persons.
Administrative Agent shall not be responsible to any Vendor for the execution,
effectiveness, priority, genuineness, validity, enforceability, collectibility
or sufficiency of this Agreement the Credit Documents or for any representations
or warranties, recitals or statements made herein or therein or made in any
written or oral statements, or in any financial or other statements,
instruments, reports or certificates or any other documents furnished or made
available by Administrative Agent to Vendors or by or on behalf of Purchaser or
Guarantors to Administrative Agent or any Vendor in connection with the Credit
Documents or the transactions contemplated thereby or for the financial
condition or business affairs of Purchaser or Guarantors or any Person liable
for payment of the Obligations, nor shall Administrative Agent be required to
ascertain or inquire as
66.
to the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained in any of the Credit Documents or as to the
use of proceeds of the Forbearances or as to the existence or possible existence
of any Event of Default.
7.8 INDEMNIFICATION. Whether or not the transactions contemplated
hereby are consummated, Vendors shall indemnify upon demand Administrative
Agent-Related Persons (to the extent not reimbursed by or on behalf of Purchaser
and without limiting the obligation of Purchaser to do so) ratably from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses and disbursements of any kind
whatsoever which may at any time (including at any time following the repayment
of the Forbearances or the termination or the resignation of the related
Administrative Agent) be imposed on, incurred by or asserted against any such
Person in any way relating to or arising out of this Agreement or any of the
other Credit Documents or the transactions contemplated hereby or thereby or any
action taken or omitted by any such Person under or in connection with any of
the foregoing; provided, however, that no Vendor shall be liable for the payment
to Administrative Agent-Related Persons of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Person's gross negligence or
willful misconduct. Without limitation of the foregoing, each Vendor shall
reimburse Administrative Agent upon demand for its ratable share of any costs or
other out-of-pocket expenses (including reasonable attorneys' expenses and
disbursements) incurred by Administrative Agent in connection with the
preparation, execution, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement or any
other Credit Document to the extent that Administrative Agent has not previously
been reimbursed for such expenses by or on behalf of Purchaser. Without limiting
the generality of the foregoing, if any tax authority or the Administrative
Agent did not properly withhold tax from amounts paid to or for the account of
any Vendor (because the appropriate form was not delivered, was not properly
executed, or because such Vendor failed to notify Administrative Agent of a
change in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason), such Vendor shall
indemnify Administrative Agent fully for all amounts paid, directly or
indirectly, by Administrative Agent as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the amounts
payable to Administrative Agent under this SECTION 7.8, together with all costs
and expenses (including reasonable attorneys' expenses and disbursements). The
obligations of Vendors in this SECTION 7.8 shall survive the repayment of all
Obligations and the termination of the Credit Documents.
7.9 SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may, and at
the request of Requisite Vendors shall, resign as Administrative Agent upon 30
days' notice to Vendors. If Administrative Agent shall resign as Administrative
Agent under this Agreement and the other Credit Documents, then Requisite
Vendors shall appoint a successor Administrative Agent; provided, however, that
such successor shall also be an Eligible Assignee. If no successor
Administrative Agent is appointed prior to the effective date of the resignation
of Administrative Agent, Administrative Agent may appoint, after consulting with
Vendors and Purchaser, a successor Administrative Agent from among Vendors. Upon
the acceptance of its appointment as successor Administrative Agent hereunder
and under the other Credit Documents, such successor Administrative Agent shall
succeed to the rights, powers and duties of Administrative Agent, the term
"Administrative Agent" shall mean such successor Administrative Agent effective
upon its appointment, and the former Administrative Agent's appointment, rights,
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powers and duties as Administrative Agent shall be terminated. After any
retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this SECTION 7 and SECTIONS 9.4 and 9.15 shall continue to inure
to its benefit as to actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Credit Documents.
SECTION 8. COLLATERAL AGENT.
8.1 APPOINTMENT OF QUALCOMM INCORPORATED AS COLLATERAL AGENT. Vendors
hereby designate and appoint QUALCOMM Incorporated as Collateral Agent to act as
specified under this Agreement and the other Credit Documents, including,
without limitation, holding all possessory Collateral. Each Vendor hereby
irrevocably authorizes, and each holder of a Note and Pagare by the acceptance
of such Note and Pagare shall be deemed to have authorized, Collateral Agent to
take such action on its behalf under the provisions of this Agreement and the
other Credit Documents and to exercise such powers and perform such duties as
are expressly delegated to Collateral Agent by the terms of this Agreement or
any other Credit Document, together with such other powers as are reasonably
incidental hereto and thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement or any other Credit Document, Collateral Agent shall
not have any duties or responsibilities, except those expressly set forth herein
or therein, or any fiduciary relationship with any Vendor, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Credit Document or otherwise exist
against Collateral Agent.
8.2 DELEGATION OF DUTIES BY COLLATERAL AGENT. Collateral Agent may
execute any of its duties under this Agreement or any of the Credit Documents by
or through agents, employees or attorneys-in-fact, including, without
limitation, any local agent appointed by Collateral Agent in relation to
registering the security interest of Secured Parties under any of the Collateral
Documents, and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. Collateral Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact, including, without
limitation, any such local agent, that it selects with reasonable care.
8.3 LIABILITY OF COLLATERAL AGENT. None of Collateral Agent-Related
Persons (as defined below) shall (a) be liable for any action taken or omitted
to be taken by any of them under or in connection with this Agreement (except
for its own gross negligence or willful misconduct), or (b) be responsible in
any manner for the value of any Collateral or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any Credit
Document. No Collateral Agent-Related Person shall be under any obligation to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of Purchaser. "Collateral Agent-Related Persons"
shall mean Collateral Agent and any successor Collateral Agent, together with
their respective Affiliates, and the employees, agents and attorneys-in-fact of
such persons.
8.4 RELIANCE BY COLLATERAL AGENT. Collateral Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by
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the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel to Purchaser), independent accountants and other experts
selected by Collateral Agent.
8.5 NON-RELIANCE BY VENDORS. Each Vendor expressly acknowledges that
none of Collateral Agent-Related Persons has made any representation or warranty
to it and that no act by Collateral Agent hereafter taken shall be deemed to
constitute any representation or warranty by Collateral Agent to such Vendor.
Collateral Agent shall not have any duty or responsibility to provide to any
Vendor any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of
Purchaser or Guarantor which may come into the possession of any Collateral
Agent-Related Persons. Collateral Agent shall not be responsible to any Vendor
for the execution, effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Agreement or for any representations or
warranties, recitals or statements made herein or made in any written or oral
statements, or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by Collateral Agent to
Vendors or by or on behalf of Purchaser or Guarantors to Collateral Agent or any
Vendor in connection with the Credit Documents or the transactions contemplated
thereby or for the financial condition or business affairs of Purchaser or
Guarantors or any Person liable for payment of the Obligations, nor shall
Collateral Agent be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained in any of the Credit Documents or as to the use of proceeds of the
Forbearances or as to the existence or possible existence of any Event of
Default or Unmatured Event of Default.
8.6 INDEMNIFICATION. Whether or not the transactions contemplated
hereby are consummated, Vendors shall indemnify upon demand Collateral
Agent-Related Persons (to the extent not reimbursed by or on behalf of Purchaser
and without limiting the obligation of Purchaser to do so) ratably from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses and disbursements of any kind
whatsoever which may at any time (including at any time following the repayment
of the Forbearances or the termination or the resignation of the related
Collateral Agent) be imposed on, incurred by or asserted against any such Person
in any way relating to or arising out of this Agreement or any of the other
Credit Documents or the transactions contemplated hereby or thereby or any
action taken or omitted by any such Person under or in connection with any of
the foregoing; provided, however, that no Vendor shall be liable for the payment
to Collateral Agent-Related Persons of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Person's gross negligence or
willful misconduct. Without limitation of the foregoing, each Vendor shall
reimburse Collateral Agent upon demand for its ratable share of any costs or
other out-of-pocket expenses (including reasonable attorneys' expenses and
disbursements) incurred by Collateral Agent in connection with the preparation,
execution, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement or any other Credit
Document to the extent that Collateral Agent has not previously been reimbursed
for such expenses by or on behalf of Purchaser. The obligations of Vendors in
this SECTION 8.6 shall survive the repayment of all Obligations.
8.7 SUCCESSOR COLLATERAL AGENT. Collateral Agent may resign as
Collateral Agent upon sixty (60) days' notice to Vendors. If Collateral Agent
shall resign as Collateral Agent
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under this Agreement and the other Credit Documents, then Requisite Vendors
shall appoint a successor Collateral Agent; provided, however, that such
successor shall also be an Eligible Assignee. No resignation shall be effective
until acceptance of the appointment of a successor Collateral Agent. Such
successor collateral agent shall succeed to the rights, powers and duties of
Collateral Agent, and the term "Collateral Agent" shall mean such successor
collateral agent effective upon its appointment, and the former Collateral
Agent's rights, powers and duties as Collateral Agent shall be terminated,
without any other or further act or deed on the part of such former Collateral
Agent or any of the parties to this Agreement or any holders of the Notes or
Pagares. After any retiring Collateral Agent's resignation as Collateral Agent,
the provisions of this SECTION 8 shall inure to its benefit as to actions taken
or omitted to be taken by it while it was Collateral Agent under this Agreement
and the other Credit Documents.
SECTION 9. MISCELLANEOUS.
9.1 AMENDMENTS. No amendment or waiver of any provision of this
Agreement or any of the other Credit Documents, nor consent to any departure by
Purchaser therefrom, shall in any event be effective unless the same shall be in
writing and signed by Requisite Vendors and acknowledged by Administrative Agent
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no such
amendment or waiver or consent shall, unless in writing and signed by all
Vendors (other than any Vendor which is in default of its obligations hereunder)
and Purchaser and acknowledged by the Administrative Agent, do any of the
following:
(a) postpone or delay any date fixed by this Agreement or any
other Credit Document for any payment or prepayment of amounts due to Vendors,
or any of them, hereunder or under any other Credit Document;
(b) reduce the amount of any amounts payable to Vendors, or
any of them, hereunder or under any other Credit Document;
(c) change the percentage of the Aggregate Commitment or the
aggregate unpaid principal amount of the Forbearances, which is required for
Vendors to take any action hereunder;
(d) release all or any substantial part of the collateral
granted or pledged under any of the Collateral Documents, except as otherwise
may be provided in the Collateral Documents;
(e) amend, terminate or release the Guaranty; or
(f) amend this SECTION 9.1 or any provision herein expressly
providing for consent or other action by all Vendors;
provided further, that no amendment or waiver shall, unless in writing and
signed by Administrative Agent and Collateral Agent in addition to Requisite
Vendors or all Vendors, affect the rights or duties of Administrative Agent and
Collateral Agent under this Agreement or any other Credit Document.
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9.2 NOTICES, ETC. Except as to those notices and other communications
which are expressly authorized to be sent telephonically, all notices and other
communications provided for hereunder shall be in writing (including facsimile
communication) and sent by overnight courier service, telecopied or delivered,
and addressed to Purchaser, Administrative Agent, Collateral Agent or any Vendor
at the address set forth on the signature page hereto, or at such other address
as it may, by written notice received by the other parties to this Agreement,
have designated as its address for such purposes. Administrative Agent,
Collateral Agent, any Vendor or the holder of the Notes and Pagares giving any
waiver, consent or notice to, or making any request upon, Purchaser hereunder
shall promptly notify the other parties to this Agreement at the addresses set
forth as the address of each Person on the signature pages of this Agreement or
at such other address as shall be designated by any party in a written notice to
the other parties hereto.
The address for notices for Persons which subsequently become Vendors
hereunder shall be as noted in the assignment and acceptance documentation to
which such Person becomes a party. Except as set forth below, all such notices
and communications shall, when mailed by overnight courier service or
telecopied, be effective, if deposited with the overnight courier service, two
(2) Business Days after deposit therewith, or if telecopied, upon being
telecopied, with receipt telephonically confirmed by sender, respectively,
addressed as aforesaid; provided, however, that notices to Vendors or
Administrative Agent pursuant to the provisions of SECTION 2 of this Agreement
shall not be effective, as of a given Business Day, unless actually received by
Vendors or Administrative Agent or both, as applicable, prior to 1:00 p.m. New
York time, on said Business Day. Notices given to Vendors or Administrative
Agent pursuant to the provisions of SECTION 2 of this Agreement which are
received after 1:00 p.m. New York time on a Business Day shall be considered
effective as of the next succeeding Business Day. Each of such notices specified
in SECTION 2 of this Agreement shall be given by telephone, facsimile or
delivery of such notice. Neither Vendors nor Administrative Agent shall incur
any liability to Purchaser in acting upon any telephone or facsimile notice
referred to in SECTION 2 of this Agreement which Vendors or Administrative Agent
believe in good faith to have been given by a duly authorized officer or other
person authorized to borrow on behalf of Purchaser. Each such telephonic or
facsimile notice shall be irrevocable and binding on Purchaser.
9.3 NO WAIVER; REMEDIES. No failure on the part of Administrative
Agent, Collateral Agent and Vendors to exercise, and no delay in exercising, any
right under any Credit Document shall operate as a waiver thereof; nor shall any
single or partial exercise of any right under any Credit Document preclude any
other or further exercise thereof or the exercise of any other right. The
remedies provided in the Credit Documents are cumulative and not exclusive of
any remedies provided by law.
9.4 COSTS, EXPENSES AND TAXES. Purchaser agrees to pay Administrative
Agent or Vendors, as the case may be, on demand, whether or not any Forbearance
is made hereunder, (a) all reasonable fees, costs and expenses incurred by
Administrative Agent, Collateral Agent or Vendors in connection with the
negotiation, preparation, execution, delivery and consummation of, and the
making of the initial Forbearances under, this Agreement and the other Credit
Documents, including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for Administrative Agent, Collateral Agent and Vendors with
respect thereto and appraisal fees; provided, however that any out of pocket
expenses exceeding Ten Thousand Dollars ($10,000) shall be pre-approved by
Purchaser; (b) all reasonable fees and expenses,
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including attorneys' fees, incurred by Administrative Agent, Collateral Agent
and Vendors in connection with the negotiation of and/or the preparation of
amendments to and waivers under the Credit Documents; (c) all reasonable costs
and expenses, if any (including reasonable counsel fees and expenses), incurred
by Administrative Agent, Collateral Agent and Vendors in connection with the
enforcement and administration of the Credit Documents and the other documents
to be delivered under the Credit Documents; and (d) any and all recording and
filing fees and any present and future stamp, excise and other similar taxes
with respect to the foregoing matters, and Purchaser agrees to indemnify and
hold Administrative Agent, Collateral Agent and Vendors harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission to pay Vendors any such taxes. As used herein, "attorneys' fees" shall
include, without limitation, allocable costs of Administrative Agent's,
Collateral Agent's and Vendors' in-house legal counsel and staff.
9.5 RIGHT OF SET-OFF. Upon the occurrence and during the continuance of
any Event of Default, Administrative Agent, Collateral Agent and Vendors are
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by Vendors to or for the credit or the account of Purchaser or
Guarantors against any and all of the obligations of Purchaser or Guarantors now
or hereafter existing under any Credit Document, irrespective of whether or not
Administrative Agent, Collateral Agent or Vendors shall have made any demand
under such Credit Document and although such obligations may be unmatured.
Vendors agree promptly to notify Purchaser or Guarantors, as the case may be,
after any such set-off and application, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of Vendors under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which Vendors may have.
9.6 RATABLE SHARING. Vendors hereby agree among themselves that if any
of them shall, whether by voluntary payment (other than a voluntary prepayment
of Forbearances made and applied in accordance with the terms of this
Agreement), by realization upon security, through the exercise of any right of
set-off or banker's lien, by counterclaim or cross action or by the enforcement
of any right under the Credit Documents or otherwise, or as adequate protection
of a deposit treated as cash collateral under bankruptcy laws, receive payment
or reduction of a proportion of the aggregate amount of principal, interest,
fees and other amounts then due and owing to that Vendor hereunder or under the
other Credit Documents (collectively, the "Aggregate Amounts Due" to such
Vendor) which is greater than the proportion received by any other Vendor in
respect of the Aggregate Amounts Due to such other Vendor, then the Vendor
receiving such proportionately greater payment shall (i) notify Administrative
Agent and each other Vendor of the receipt of such payment and (ii) apply a
portion of such payment to purchase participations (which it shall be deemed to
have purchased from cash seller of a participation simultaneously upon the
receipt by such seller of its portion of such payment) in the Aggregate Amounts
Due to the other Vendors so that all such recoveries of Aggregate Amounts Due
shall be shared by all Vendors in proportion to the Aggregate Amounts Due to
them; provided that if all or part of such proportionately greater payment
received by such purchasing Vendor is thereafter recovered from such Vendor upon
the bankruptcy or reorganization of Purchaser or otherwise, those purchases
shall be rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Vendor ratably to the extent of such recovery, but
without interest. Purchaser expressly consents to the foregoing arrangement and
agrees that any holder
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of a participation so purchased may exercise any and all rights of banker's
lien, set-off or counterclaim with respect to any and all monies owing by
Purchaser to that holder with respect thereto as fully as if the holder were
owed the amount of the participation held by that holder. Each Vendor hereby
agrees that, solely for purposes of this SECTION 9.6, a participant shall be
considered to be a Vendor.
9.7 BINDING EFFECT; ASSIGNMENTS. This Agreement and the other Credit
Documents shall be binding upon and inure to the benefit of Purchaser, Vendors,
Collateral Agent and Administrative Agent and their respective successors and
assigns. Purchaser and Parent shall not have the right to assign their rights or
delegate their duties hereunder or any interest herein without the prior written
consent of Vendors and Administrative Agent. Vendors may assign or sell
participation interests in all or any part of their interests under this
Agreement or any of the other Credit Documents to any Eligible Assignee.
Purchaser hereby grants its unconditional authorization to Vendors to execute
any such assignment, and agrees that it shall be sufficient that there exist
only an agreement between Vendors and their assignees. Administrative Agent
shall notify Purchaser of the assignment in writing, pursuant to the provisions
of SECTION 9.2. This unconditional acceptance by Purchaser of any such
assignment by Vendors includes Purchaser's and Guarantor's express consent to
the total or partial assignment of the Guaranty or any other guaranties that
have been or may be in the future be extended as surety for the payment and
performance of Purchaser's Obligations under this Agreement and the other Credit
Agreements. Purchaser, Guarantor and Vendors hereby agree that in the event of
any such assignment, the rights and interests in and to the Purchaser's and
Guarantor's payment and performance of its Obligations under this Agreement and
each of the other Credit Agreements, shall be assigned in favor of the one or
several assignees, to be shared jointly with Vendors or such other assignees if
the assignment is in part. Vendors may, subject to SECTION 9.21 below, disclose
the Credit Documents and any financial or other information relating to
Purchaser to any potential assignee or participant. Any Taxes arising from the
assignment shall be borne by Purchaser. The form of Assignment and Acceptance is
attached hereto as EXHIBIT F.
9.8 COLLATERAL. The obligations of Purchaser under this Agreement are
secured by the Collateral Documents.
9.9 NATURE OF VENDORS' OBLIGATIONS. Nothing contained in this
Agreement, any other Credit Document or the Equipment Agreements and no action
taken by Vendors pursuant hereto or thereto may, or may be deemed to, make
Administrative Agent, Collateral Agent or Vendors a partnership, an association,
a joint venture, or other entity, with Purchaser.
9.10 NON-LIABILITY OF VENDORS. The relationship between Purchaser and
Vendors is, and shall at all times remain, solely that of borrower and lender,
and Vendors neither undertake nor assume any responsibility or duty to Purchaser
to review, inspect, supervise, pass judgment upon, or inform Purchaser of any
matter in connection with any phase of Purchaser's business, operations, or
condition, financial or otherwise. Purchaser shall rely entirely upon its own
judgment with respect to such matters, and any review, inspection, supervision,
exercise of judgment, or information supplied to Purchaser by Vendors in
connection with any such matter is for the protection of Vendors, and neither
Purchaser nor any third party is entitled to rely thereon.
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9.11 GOVERNING LAW, JURISDICTION, VENUE, SERVICE OF PROCESS, WAIVER OF
IMMUNITY.
(a) GOVERNING LAW, JURISDICTION. This Agreement shall be
governed by, and construed in accordance with, the law of the State of New York,
United States, without reference to principles of conflicts of law (other than
Section 5-1401 of the General Obligations Laws of the State of New York).
(b) VENUE. Purchaser, each Guarantor, each Vendor,
Administrative Agent and Collateral Agent hereby agree that any suit, action or
proceeding with respect to this Agreement or any of the other Credit Agreements
or any judgment entered by any court in respect thereof may be brought in the
United States of America District Court for the Southern District of New York,
in the Supreme Court of the State of New York sitting in New York County
(including its Appellate Division), or in any other appellate court in the State
of New York or the courts sitting in the Comuna of Santiago, Santiago, Republic
of Chile, as the party commencing such suit, action or proceeding may elect in
its sole discretion; and Purchaser, each Guarantor, each Vendor, Administrative
Agent and Collateral Agent hereby irrevocably submit to the jurisdiction of such
courts for the purpose of any such suit, action, proceeding or judgment.
Purchaser, each Guarantor, each Vendor, Administrative Agent and Collateral
Agent further submits, for the purpose of any such suit, action, proceeding or
judgment brought or rendered against it, to the appropriate courts of the
jurisdiction of its domicile. Purchaser and Guarantor hereby waive any rights to
a specific jurisdiction it may have by virtue of its present or any future
domicile, or otherwise.
(c) SERVICE OF PROCESS. Purchaser and Guarantors hereby agree
that service of all writs, process and summonses in any such suit, action or
proceeding brought (i) in the State of New York may be made upon CT Corporation
System, presently located at 1633 Broadway, New York, New York 10019, U.S.A. and
(ii) in the Republic of Chile may be made upon Mr. Octavio Bofill-Genzsch of
Grasty, Quintana, Majlis y Cia., presently located at Tenderini 153, Santiago,
Chile (the "Process Agents"), and Purchaser and Guarantors hereby confirm and
agree that the Process Agents have been duly and irrevocably appointed as their
respective agent and true and lawful attorney-in-fact in their respective name,
place and stead to accept such service of any and all such writs, process and
summonses, and agree that the failure of the Process Agents to give any notice
of any such service of process to Purchaser or Guarantors, as the case may be,
shall not impair or affect the validity of such service or of any judgment based
thereon. Purchaser and Guarantors hereby further irrevocably consent to the
service of process in any suit, action or proceeding in said courts by the
mailing thereof by Vendor by registered or certified mail, postage prepaid, at
its address set forth beneath its signature hereto. Nothing herein shall in any
way be deemed to limit the ability of Vendors to serve any such writs, process
or summonses in any other manner permitted by applicable law or to obtain
jurisdiction over Purchaser and Guarantors in such other jurisdictions, and in
such manner, as may be permitted by applicable law. Purchaser and Guarantors
hereby irrevocably waive any objection that they may now or hereafter have to
the laying of the venue of any suit, action or proceeding arising out of or
relating to this Agreement or any other Credit Document brought in the Supreme
Court of the State of New York, County of New York, or in the United States of
America District Court for the Southern District of New York or the competent
courts of the Republic of Chile, and hereby further irrevocably waive any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Furthermore, Purchaser and Guarantors
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hereby agree to cause each Process Agent to execute and deliver to Vendor a
letter from each Process Agent to Vendor confirming Process Agent's acceptance
of the appointment by Purchaser and Guarantor, respectively, prescribed in
SECTION 9.11(C).
(d) WAIVER OF IMMUNITY. Each of Purchaser and Guarantors
irrevocably and unconditionally waives any immunity to which it or its property
may at any time be or become entitled, whether characterized as sovereign
immunity or otherwise, from any set-off or legal action in the Republic of Chile
or elsewhere, including immunity from service of process, immunity from
jurisdiction of any court or tribunal, and immunity of any of its property from
attachment prior to judgment or from execution of a judgment. This Agreement,
the other Credit Documents and the Forbearances are of a commercial rather than
the public or governmental nature and Purchaser and each Guarantor are not
entitled to claim immunity from legal proceedings with respect to itself or any
of its properties or assets on any grounds of sovereignty or otherwise under any
law or in any jurisdiction where an action may be brought for the enforcement of
any of the obligations arising under or relating to this Agreement or the other
Credit Documents.
(e) WAIVER OF JURY TRIAL. PURCHASER, EACH GUARANTOR, EACH
VENDOR, ADMINISTRATIVE AGENT AND COLLATERAL AGENT HEREBY IRREVOCABLY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER
PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT OR ANY
OF THE OTHER CREDIT DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS OR OBLIGATIONS.
9.12 CONFLICT IN CREDIT DOCUMENTS. To the extent there is any actual
irreconcilable conflict between the provisions of this Agreement and any other
Credit Document, the provisions of this Agreement shall prevail.
9.13 MAXIMUM RATE. In no event whatsoever shall the interest rate and
other charges charged hereunder exceed the highest rate permissible under any
law which a court of competent jurisdiction shall, in a final determination,
deem applicable hereto. In the event that a court determines that Vendors have
received interest and other charges hereunder in excess of the highest rate
applicable hereto, Vendors shall promptly refund such excess amount to Purchaser
and the provisions hereof shall be deemed amended to provide for such
permissible rate.
9.14 BROKER. Purchaser and Vendors represent and warrant to each other
that, with respect to the financing transaction herein contemplated, no Person
is entitled to any brokerage fee or other commission as a result of their
respective conduct and each agrees to indemnify and hold the other harmless
against any and all such claims for which the indemnitor is responsible.
9.15 INDEMNIFICATION. Purchaser agrees to indemnify, save, and hold
harmless Administrative Agent, Collateral Agent, Vendors and their directors,
officers, agents, attorneys and employees (collectively, the "Indemnitees") from
and against: (a) any and all claims, demands, actions, or causes of action that
are asserted against any indemnitee by any Person if the claim, demand, action,
or cause of action arises out of or relates to a claim, demand, action, or cause
of action that the Person asserts or may assert against Purchaser, or any
officer, director or shareholder of Purchaser in their capacity as such; (b) any
and all claims, demands, actions or causes of action that are asserted against
any indemnitee (other than by Purchaser) if the claim,
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demand, action or cause of action arises out of or relates to the Forbearances,
the use of proceeds of any Forbearances, or the relationship of Purchaser and
Vendors under this Agreement or any transaction contemplated pursuant to this
Agreement; (c) any administrative or investigative proceeding by any
governmental agency arising out of or related to a claim, demand, action or
cause of action described in clauses (a) or (b) above; and (d) any and all
liabilities, losses, costs, or expenses (including outside attorneys' fees,
in-house counsel fees and disbursements) that any indemnitee suffers or incurs
as a result of any of the foregoing; provided, that Purchaser shall have no
obligation under this SECTION 9.15 to any Vendor, Collateral Agent or
Administrative Agent with respect to any of the foregoing arising out of the
gross negligence or willful misconduct of such Vendor, Collateral Agent or
Administrative Agent.
9.16 SEVERABILITY. Whenever possible, each provision of this Agreement,
the Notes, Pagares and each of the other Credit Documents shall be interpreted
in such a manner as to be valid, legal and enforceable under the applicable law
of any jurisdiction. Without limiting the generality of the foregoing, in case
any provision of this Agreement, the Notes, Pagares or any of the other Credit
Document shall be invalid, illegal or unenforceable under the applicable law of
any jurisdiction, the validity, legality and enforceability of the remaining
provisions, or of such provision in any other jurisdiction, shall not in any way
be affected or impaired thereby.
9.17 HEADINGS. Headings in this Agreement are for convenience of
reference only and are not part of the substance hereof.
9.18 COUNTERPARTS. This Agreement may be executed in identical original
counterparts, each of which will be deemed to be an original and taken together
shall constitute one and the same instrument.
9.19 SURVIVAL. All indemnities herein shall survive the execution and
delivery of this Agreement, the Notes and Pagares and the making and repayment
of all Forbearances.
9.20 EFFECTIVENESS. This Agreement shall become effective on the date
on which Purchaser, Vendors, Administrative Agent and Collateral Agent shall
have signed a copy hereof and shall have delivered the same to the other
parties.
9.21 CONFIDENTIALITY. Administrative Agent, Collateral Agent, and each
Vendor agrees that it will use its reasonable best efforts to keep confidential
and to cause any representative designated under SECTION 5.1(F) hereof to keep
confidential any material non-public information from time to time supplied to
it under this Agreement; provided, however, that nothing herein shall prohibit
Administrative Agent, Collateral Agent or any Vendor from disclosing such
information (a) to the extent Administrative Agent, Collateral Agent or such
Vendor in good faith believes it is required by statute, rule, regulation or
judicial process to divulge such information to any Person as required by such
authority; (b) to Administrative Agent's, Collateral Agent's or such Vendor's
counsel; (c) to Administrative Agent's, Collateral Agent's or such Vendor's
examiners, regulators, advisors, auditors or comparable Persons; (d) to any of
Administrative Agent's, Collateral Agent's or such Vendor's Affiliates; (e) to
any other Vendor or any assignee, transferee or participant, or any potential
assignee, transferee or participant, of all or any portion of Administrative
Agent's, Collateral Agent's or any Vendor's rights under this Agreement or the
other Credit Documents who is notified of the confidential nature of the
information and agrees to be bound by this provision or provisions reasonably
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comparable hereto; or (f) any other Person in connection with any litigation to
which any of Vendors is a party; and provided, further, that no Vendor shall
have any obligation under this SECTION 9.21 to the extent any such information
becomes available on a non-confidential basis from a source other than Purchaser
or its Subsidiaries or that any information becomes publicly available other
than by a breach of this SECTION 9.21. Each Vendor agrees it will use all
confidential information exclusively for the purpose of evaluating, monitoring,
selling, protecting or enforcing its rights under this Agreement and the other
Credit Documents. Without affecting any other rights of Purchaser, each Vendor
agrees that Purchaser shall be entitled to seek the remedies of injunction and
specific performance for any breach of the provisions of this SECTION 9.21.
9.22 ENTIRE AGREEMENT. This Agreement, the Notes, the Pagares, the
other Credit Documents and the documents and agreements executed in connection
herewith and therewith constitute the final agreement of the parties hereto and
supersede any prior agreement or understanding, written or oral, with respect to
the matters contained herein and therein, including but not limited to any Term
Sheet between or among Purchaser, Parent and QUALCOMM through the date of this
Agreement.
9.23 CURRENCY OF PAYMENT. The obligation of Purchaser to pay in Dollars
those amounts of the sums specified to be due in Dollars, under this Agreement
or the respective Credit Documents (the "Credit Document Currency") shall not be
deemed to have been novated, discharged or satisfied by any tender of (or
recovery under judgment expressed in) any currency other than the Credit
Document Currency, except to the extent to which such tender (or recovery) shall
result in the effective payment of such aggregate amount in the applicable
Credit Document Currency at the place where such payment is due and,
accordingly, the amount (if any) by which any such tender (or recovery) shall
fall short of such amount shall be and remain due to Administrative Agent,
Vendors or QUALCOMM, as the case may be, as a separate Obligation, unaffected by
judgment having been obtained (if such is the case) for any other amounts due in
respect of this Agreement or the Credit Documents.
9.24 JUDGMENT CURRENCY. Purchaser agrees to indemnify each Vendor
against any loss incurred by it as a result of any judgment or order being given
or made for the payment of any amount due under any Pagare which is expressed
and paid in a currency (the "Judgment Currency") other than the currency in
which such amount was payable under this Agreement (the "Obligation Currency")
and as a result of any variation between (i) the rate of exchange at which the
Obligation Currency amount is converted into the Judgment Currency for the
purposes of satisfying such judgment or order, and (ii) the rate of exchange at
which such Vendor is able to purchase the Obligation Currency with the amount of
Judgment Currency actually received by such Vendor. The foregoing indemnity
shall constitute a separate and independent obligation of Purchaser and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of, or conversions into, the
relevant currency.
9.25 ENGLISH LANGUAGE. This Agreement is made in the English language.
One Spanish language translation of this Agreement prepared at Purchaser's
expense by Chilean counsel to Purchaser and Chilean counsel to Vendors under
this Agreement shall be the agreed Spanish language translation hereof for all
purposes. Such translation and no other may be filed in one or more public
registries in the Republic of Chile or used in any proceeding in the
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Republic of Chile. For all purposes, the English language version hereof shall
be the original instrument and in all cases of conflict between the English and
the Spanish versions, the English version shall control.
9.26 REINSTATEMENT. This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
obligations of Purchaser, or any part thereof, is, pursuant to applicable Law,
rescinded or reduced in amount, or must otherwise be restored or returned by
Administrative Agent, any Vendor or QUALCOMM. In the event that any payment or
any part thereof is so rescinded, reduced, restored or returned, such
obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, restored or returned.
78.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunder duly authorized, as of the date
first above written.
PURCHASER: CHILESAT TELEFONIA PERSONAL S.A., a
company duly organized under the laws of
the Republic of Chile
By: /s/ ALEJANDRO ROJAS
--------------------------------------
Chairman
By: /s/ STEVEN J. CALIGURI
--------------------------------------
Director
Address: Rinconada El Salto 202
Huechuraba Santiago,
Chile
GUARANTOR: INVERSIONES LEAP WIRELESS CHILE S.A., a
company duly organized under the laws of
the Republic of Chile
By: /s/ JAMES E. HOFFMANN
--------------------------------------
Name:
------------------------------------
Title: Agent
-----------------------------------
Address:
ADMINISTRATIVE AGENT: QUALCOMM Incorporated
By: /s/ PAUL FISKNESS
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address: QUALCOMM Incorporated
5755 Morehouse Drive
San Diego, California 92121
Attention: Vice President -
Customer Finance
Fax No. (619) 658-4203
With Copy to: General Counsel
Payment Office: QUALCOMM Incorporated
5755 Morehouse Drive
San Diego, California 92121
Attention: Vice President -
Customer Finance
Fax No. (619) 658-4203
With Copy to: General Counsel
[Signature Page]
COLLATERAL AGENT: QUALCOMM Incorporated
By: /s/ PAUL FISKNESS
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address: QUALCOMM Incorporated
5755 Morehouse Drive
San Diego, California 92121
Attention: Vice President -
Customer Finance
Fax No. (619) 658-4203
With Copy to: General Counsel
VENDORS: QUALCOMM INCORPORATED
By: /s/ PAUL FISKNESS
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Domestic Lending Office
QUALCOMM Incorporated
5755 Morehouse Drive
San Diego, California 92121
Attention: Vice President -
Customer Finance
Fax No. (619) 658-4203
With Copy to: General Counsel
[Signature Page]
SCHEDULE 1.1
COMMITMENTS
[Download Table]
DEFERRED CAPITALIZED
PAYMENT INTEREST AGGREGATE
BALANCE COMMITMENT COMMITMENT
------- ---------- ----------
QUALCOMM Incorporated $90,685,384.09 $14,600,000.00 $105,285,384.09
SCHEDULE 2.7(A)
PRINCIPAL AND CAPITALIZED INTEREST PAYMENT SCHEDULE
[Download Table]
PERIOD PERCENTAGE
------ ----------
September 30, 2001 29%
March 31, 2002 2%
September 30, 2002 2%
March 31, 2003 2%
September 30, 2003 2%
March 31, 2004 7%
September 30, 2004 7%
March 31, 2005 10%
September 30, 2005 10%
March 31, 2006 14.5%
September 30, 2006 14.5%
INDEX OF SCHEDULES
Schedule 1.1 -- Commitments
Schedule 2.7(a) -- Principal and Interest Payment Schedule
Schedule 4.1(a) -- Ownership Structure of Purchaser and Parent
Schedule 4.1(f) -- Litigation
Schedule 4.1(h) -- Non-Contravention of Laws/Agreements
Schedule 4.1(i) -- Liens on Collateral
Schedule 4.1(l) -- Subsidiaries of Purchaser and Parent
Schedule 4.1(o) -- Indebtedness
Schedule 4.1(s) -- License and Other Licenses Areas and Agreements
Schedule 4.1(v) -- Transactions with Affiliates
INDEX OF EXHIBITS
Exhibit A -- Form of Pagare
Exhibit B -- Form of Landlord's Waiver
Exhibit C -- Form of Site Lease Agreement
Exhibit D -- Form of Capitalized Interest Forbearance Request
Exhibit E -- Form of Notice of Conversion/Continuation
Exhibit F Form of Assignment and Acceptance
TABLE OF CONTENTS
[Enlarge/Download Table]
PAGE
----
SECTION 1. DEFINITIONS.....................................................................................2
1.1 Defined Terms...................................................................................2
1.2 Other Interpretive Provisions..................................................................22
SECTION 2. DEFERRED PAYMENT BALANCE AND CAPITALIZED INTEREST FACILITY.....................................23
2.2 Capitalized Interest Facility..................................................................23
2.3 Types of Forbearances..........................................................................23
2.4 Conversion and Continuation Elections..........................................................23
2.5 Duration of Interest Periods...................................................................24
2.6 Notice and Manner of Making Additional Forbearances............................................24
2.7 Scheduled Payment of Principal of the Forbearances.............................................26
2.8 Interest Rates; Payment of Interest; Commitment Fee; Calculation of Interest and Fees..........26
2.9 Payment Procedures.............................................................................27
2.10 Prepayments of the Forbearances; Certain Required Payments; Aggregate Commitment
Reduction......................................................................................28
2.11 Survivability..................................................................................30
2.12 Evidence of Debt...............................................................................30
2.13 Net Payments...................................................................................32
2.14 Changed Circumstances; Taxes...................................................................33
2.15 Capital Requirements...........................................................................35
2.16 Syndication....................................................................................36
2.17 Replacement of Vendors.........................................................................36
SECTION 3. CONDITIONS OF EFFECTIVENESS OF THIS AGREEMENT AND FORBEARANCES.................................37
3.1 Conditions Precedent to the Effectiveness of the Forbearances..................................37
3.2 Conditions Precedent to Effectiveness of and Additional Forbearances...........................41
SECTION 4. REPRESENTATIONS AND WARRANTIES.................................................................41
4.1 Representations and Warranties of Purchaser....................................................41
(y) Status................................................................................47
SECTION 5. COVENANTS......................................................................................47
5.1 Affirmative Covenants..........................................................................47
5.2 Negative Covenants.............................................................................54
i
TABLE OF CONTENTS
(CONTINUED)
[Enlarge/Download Table]
PAGE
----
5.3 Financial Covenants of Purchaser...............................................................57
SECTION 6. EVENTS OF DEFAULT..............................................................................61
6.1 Events of Default..............................................................................61
6.2 Remedies.......................................................................................63
6.3 Unmatured Events of Default....................................................................64
SECTION 7. ADMINISTRATIVE AGENT...........................................................................64
7.1 Appointment of QUALCOMM Incorporated as Administrative Agent...................................64
7.2 Rights and Powers as Vendor....................................................................64
7.3 Delegation of Duties by Administrative Agent...................................................64
7.4 Liability of Administrative Agent..............................................................64
7.5 Reliance by Administrative Agent...............................................................65
7.6 Notice of Default..............................................................................66
7.7 Non-reliance by Vendors........................................................................66
7.8 Indemnification................................................................................67
7.9 Successor Administrative Agent.................................................................67
SECTION 8. COLLATERAL AGENT...............................................................................68
8.1 Appointment of QUALCOMM Incorporated as Collateral Agent.......................................68
8.2 Delegation of Duties by Collateral Agent.......................................................68
8.3 Liability of Collateral Agent..................................................................68
8.4 Reliance by Collateral Agent...................................................................68
8.5 Non-Reliance by Vendors........................................................................69
8.6 Indemnification................................................................................69
8.7 Successor Collateral Agent.....................................................................69
SECTION 9. MISCELLANEOUS..................................................................................70
9.1 Amendments.....................................................................................70
9.2 Notices, Etc...................................................................................71
9.3 No Waiver; Remedies............................................................................71
9.4 Costs, Expenses and Taxes......................................................................71
9.5 Right of Set-Off...............................................................................72
9.6 Ratable Sharing................................................................................72
ii
TABLE OF CONTENTS
(CONTINUED)
[Enlarge/Download Table]
PAGE
----
9.7 Binding Effect; Assignments....................................................................73
9.8 Collateral.....................................................................................73
9.9 Nature of Vendors' Obligations.................................................................73
9.10 Non-liability of Vendors.......................................................................73
9.11 Governing Law, Jurisdiction, Venue, Service of Process, Waiver of Immunity.....................74
9.12 Conflict in Credit Documents...................................................................75
9.13 Maximum Rate...................................................................................75
9.14 Broker.........................................................................................75
9.15 Indemnification................................................................................75
9.16 Severability...................................................................................76
9.17 Headings.......................................................................................76
9.18 Counterparts...................................................................................76
9.19 Survival.......................................................................................76
9.20 Effectiveness..................................................................................76
9.21 Confidentiality................................................................................76
9.22 Entire Agreement...............................................................................77
9.23 Currency of Payment............................................................................77
9.24 Judgment Currency..............................................................................77
9.25 English Language...............................................................................77
9.26 Reinstatement..................................................................................78
iii
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘10-K405’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 12/31/06 | | 61 | | | | | 10-K, 10-K/A |
| | 9/30/06 | | 12 | | | | | 10-Q, 10-Q/A |
| | 12/31/05 | | 59 | | 61 | | | 10-K, NT 10-K |
| | 12/31/04 | | 59 | | 61 | | | 10-K, 5, 8-K, NT 10-K |
| | 12/31/03 | | 59 | | 61 | | | 10-K, NT 10-K |
| | 12/31/02 | | 59 | | 61 | | | 10-K, 10-K/A, NT 10-K |
| | 9/30/02 | | 59 | | | | | 10-Q |
| | 6/30/02 | | 59 | | | | | 10-Q |
| | 3/31/02 | | 59 | | 60 | | | 10-Q |
| | 12/31/01 | | 59 | | 61 | | | 10-K, 10-K/A, SC TO-I/A |
| | 9/30/01 | | 27 | | 59 | | | 10-Q |
| | 9/29/01 | | 5 |
| | 6/30/01 | | 59 | | | | | 10-Q |
| | 3/31/01 | | 59 | | | | | 10-Q |
| | 12/31/00 | | 59 | | 61 | | | 10-K, 10-K/A |
| | 9/30/00 | | 59 | | | | | 10-Q, 10-Q/A |
| | 6/30/00 | | 59 |
| | 3/31/00 | | 59 | | | | | 8-K |
| | 1/1/00 | | 47 |
| | 12/31/99 | | 61 |
| | 10/21/99 |
| Filed on: | | 10/20/99 |
| | 10/12/99 | | 2 |
| For Period End: | | 8/31/99 | | | | | | | 10-K405/A, 10-KT |
| | 6/2/99 | | 11 |
| | 5/11/99 | | 22 |
| | 12/31/98 | | 44 |
| | 9/23/98 | | 9 |
| | 6/24/98 | | 2 | | 11 |
| | 4/24/97 | | 2 | | 11 |
| | 2/27/97 | | 2 | | 11 |
| List all Filings |
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