EXHIBIT 10.51
AMENDMENT NO. 5 TO AMENDED
AND RESTATED CREDIT AGREEMENT
This AMENDMENT No. 5 To AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of April 26, 2002 (this "AMENDMENT"), is entered into by and among PEGASO
COMUNICACIONES Y SISTEMAS, S.A. DE C.V., a corporation organized under the laws
of Mexico ("Borrower"), the other members of the BORROWER GROUP, XXXXXXXX
XXXXXXXXXXXX, a corporation organized under the laws of Delaware ("QUALCOMM"),
TELEFONAKTIEBOLAGET X.X. ERICSSON (PUBL), a limited liability company organized
under the laws of Sweden ("Ericsson"), the lenders from time to time party to
the Credit Agreement (as defined below) (together with QUALCOMM and Ericsson,
each a "Lender", and, collectively, the "Lenders"), and ABN AMRO BANK N.V. as
administrative agent for the Lenders ("Administrative Agent").
RECITALS
WHEREAS, Borrower has entered into the Amended and Restated Credit
Agreement, dated as of December 15, 1998 (as amended, modified, supplemented or
restated, the "Credit Agreement"), by and among Borrower, QUALCOMM, Ericsson and
the Administrative Agent, as amended by Amendment No. 1 to Amended and Restated
Credit Agreement, dated as of May 27, 1999, Amendment No. 2 to Amended and
Restated Credit Agreement, dated as of November 28, 2000, Amendment No. 3 to
Amended and Restated Credit Agreement, dated as of October 10, 2001 ("Amendment
No. 3"), and Amendment No. 4 to Amended and Restated Credit Agreement, dated as
of January 16, 2002.
WHEREAS, Pegaso Telecomunicaciones S.A. de C.V., a corporation
organized under the laws of Mexico ("Holdings"), has entered into the Stock
Purchase Agreement, dated as of the date hereof (as amended, modified,
supplemented or restated from time to time, the "Stock Purchase Agreement"), by
and among Holdings, its shareholders (the "Shareholders"), Telefonica Moviles,
S.A., a corporation organized under the laws of the Kingdom of Spain ("TEM"),
and the other parties named therein, pursuant to which TEM shall purchase from
certain of the Shareholders all the capital stock of Holdings owned by such
Shareholders in accordance with the terms and conditions of the Stock Purchase
Agreement.
WHEREAS, the Borrower has entered into the Amended and Restated
Interim Funding Agreement, dated as of the date hereof (as amended, modified,
supplemented or restated from time to time, the "Interim Funding Agreement"), by
and among the Borrower, the other members of the Borrower Group, QUALCOMM and
Electro Banque, and consented and agreed to and acknowledged by Ericsson, the
Administrative Agent, the Facility 2 Administrative Agent and Alcatel, a
corporation organized under the laws of France ("Alcatel"), pursuant to which
QUALCOMM and Electro Banque will make Special Loans (as defined in the Interim
Funding Agreement) to Borrower from QUALCOMM's unused Facility-2 Commitment
under the Credit Agreement and from the Facility 2 Credit Agreement,
respectively, for the purpose, among other things, of financing the payment of
operating expenditures of Borrower in accordance with the Business Plans
described in the Stock Purchase Agreement.
WHEREAS, QUALCOMM, Alcatel and Ericsson have entered into the Second
Vendor Parties Forbearance Agreement, acknowledged, accepted and agreed to by
each member of the Borrower Group and the other parties named therein, dated as
of April 26, 2002 (as amended, modified, supplemented or restated from time to
time, the "Second Vendor Forbearance Agreement"), pursuant to which all Covered
Vendor Facility Defaults (as defined in the Second Vendor Forbearance Agreement)
are forborne until the occurrence of a Forbearance Termination Event (as defined
in the Second Vendor Forbearance Agreement).
WHEREAS, the members of the Borrower Group have requested to amend
certain terms and provisions of the Credit Agreement as set forth in this
Amendment and the Lenders and the Administrative Agent have agreed to amend the
Credit Agreement in accordance with the terms, subject to the conditions, and in
reliance upon the representations and warranties set forth below.
NOW, THEREFORE, in consideration of the foregoing recitals and the
following mutual covenants and promises, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and
intending to be legally bound, the parties agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms used but not defined
in this Amendment shall have the meanings given to them in the Credit Agreement
or, if not defined therein, in the Common Agreement and the Interim Funding
Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT.
2.1 SECTION 9 (DEFINITIONS). Section 9 of the Credit Agreement is
hereby amended as follows:
(a) DEFINITION OF "ADDITIONAL INTERIM LOANS". A new definition
of "Additional Interim Loans" is added in appropriate alphabetical order to read
as follows:
"Additional Interim Loans" shall have the meaning given to that term
in the Interim Funding Agreement.
(b) DEFINITION OF "INTERIM FUNDING AGREEMENT". A new definition
of "Interim Funding Agreement" is added in the appropriate alphabetical order to
read as follows:
"Interim Funding Agreement" shall mean the Amended and Restated
Interim Funding Agreement dated as of April 26, 2002, as amended,
modified, supplemented or restated from time to time, by and among the
Borrower, the other members of the Borrower Group, QUALCOMM and Electro
Banque, and consented and agreed to and acknowledged by Ericsson, the
Administrative Agent, the Facility 2 Administrative Agent and Alcatel.
(c) DEFINITION OF "SPECIAL LOAN SCHEDULED MATURITY DATE". A new
definition of "Special Loan Scheduled Maturity Date" is added in the appropriate
alphabetical order to read as follows:
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"Special Loan Scheduled Maturity Date" has the meaning assigned to
such term in the Interim Funding Agreement.
2.2 QUALCOMM ADDITIONAL COMMITMENT. Section 3.2 of Amendment No.
3 is hereby deleted and replaced in its entirety with the following:
"3.2 QUALCOMM ADDITIONAL COMMITMENT. The QUALCOMM Additional Commitment
shall be available (a) for purposes of making Interim Loans, the
Backstop Fee Loan and up to $31,000,000 for Additional Interim Loans
pursuant to the Interim Funding Agreement, upon satisfaction of the
conditions precedent to funding under the Interim Funding Agreement and
(b) for the purposes of making Facility-2 Loans under the QUALCOMM
Additional Commitment for the uses specified in Section 3.4 of Amendment
No. 3, upon the satisfaction of the following conditions precedent: (1)
execution and delivery of a Definitive Agreement, (2) consummation of a
Sale Transaction in accordance with the terms and conditions set forth
in the Definitive Agreement, (3) payment in full of all Borrower's
obligations in respect of Interim Loans, the Backstop Fee Loan and the
Additional Interim Loans, (4) the irrevocable termination of the Special
Loan Commitments under the Interim Funding Agreement, (5) the
utilization by Borrower of the full Ericsson Additional Commitment, and
(6) the satisfaction (or waiver by QUALCOMM in its sole discretion) of
the other conditions precedent to the making of Facility-2 Loans under
the Credit Agreement. QUALCOMM shall provide loans to Borrower under the
QUALCOMM Additional Commitment only upon (x) with respect to Interim
Loans, the Backstop Fee Loan and the Additional Interim Loans, the
receipt of a Loan Request in accordance Section 2.1(d) of the Interim
Funding Agreement and (y) with respect to any other loans permitted
under the Credit Agreement, including without limitation, loans made
under the QUALCOMM Additional Commitment for the purposes set forth in
Section 3.4 of Amendment No. 3, the receipt of a Loan Request and the
supporting invoices in the manner and in accordance with the terms and
conditions set forth in Section 1.5(b)(i) of the Credit Agreement.
Without limiting the other provisions of the Credit Agreement applicable
to QUALCOMM's Facility-2 Commitment with respect to the QUALCOMM
Additional Commitment, QUALCOMM's Facility-2 Commitment with respect to
the QUALCOMM Additional Commitment shall be automatically reinstated in
accordance with its terms to the extent that the Interim Loans, the
Additional Interim Loans and the Backstop Fee Loan are repaid by
Borrower pursuant to Section 2.2(b), Section 2.3(b) and Section 2.4(b)
of the Interim Funding Agreement, respectively, on or before the Special
Loan Scheduled Maturity Date."
2.3 PARTIAL INCORPORATION OF INTERIM FUNDING AGREEMENT. The
Credit Agreement, solely relating to the Special Loans funded from the QUALCOMM
Additional Commitment, is hereby modified by the Interim Funding Agreement, and
to the extent that the Interim Funding Agreement relates to the subject matter
of the Credit Agreement, the Interim Funding Agreement is hereby incorporated by
reference as if set out in full in this Amendment (including, without
limitation, any modification relating to Additional Interim Loans with respect
to interest rate, maturity and use of proceeds).
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SECTION 3. REFERENCE TO AND EFFECT ON CREDIT AGREEMENT AND OTHER
FINANCING AGREEMENTS.
(a) On the Effective Date, each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like
import shall mean and be a reference to the Credit Agreement as amended by this
Amendment and each reference in the Financing Agreements to the Credit Agreement
shall also mean and be a reference to the Credit Agreement as amended by this
Amendment.
(b) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Administrative Agent or the Lenders under the
Credit Agreement or any of the Financing Agreements, nor constitute a waiver of
any provision of the Credit Agreement or any of the Financing Agreements.
SECTION 4. REAFFIRMATION OF TERMS. This Amendment shall be construed in
connection with and as part of the Financing Agreements and all terms,
conditions, representations, warranties, covenants and agreements set forth in
the Financing Agreements, except as herein waived or amended, are hereby
ratified and confirmed and shall remain in full force and effect.
SECTION 5. ACKNOWLEDGMENTS AND WAIVERS. Each member of the Borrower
Group hereby ratifies and reaffirms the validity and enforceability of all of
the Liens and security interests heretofore granted pursuant to the Common
Agreement and the Security Documents referred to therein, for the benefit of the
Lenders, as collateral security for the Senior Indebtedness, and acknowledges
that all of such Liens and security interests, and all collateral pledged as
security for the Senior Indebtedness, continue to be and remain collateral for
the Senior Indebtedness from and after the Effective Date, respectively.
SECTION 6. RELEASE AND WAIVER.
(a) Each member of the Borrower Group hereby acknowledges and
agrees that: (i) it has no claim or cause of action against any Lender or the
Administrative Agent, or any of their officers, directors, employees, attorneys
or other representatives or agents under the Financing Agreements with respect
to any condition, act, omission, event, contract, liability, obligation,
indebtedness, claim, cause of action, defense, circumstance or matter of any
kind whatsoever which existed, arose or occurred at any time prior to the
execution and delivery of this Amendment or which could arise concurrently with
the effectiveness of this Amendment ("Claims"); (ii) it has no offset or defense
against any of its respective obligations, indebtedness or contracts in favor of
any Lender or the Administrative Agent on account of any Claims; and (iii) it
recognizes that each Lender and the Administrative Agent has heretofore properly
performed and satisfied in a timely manner all of its obligations to and
contracts with each member of the Borrower Group relating to the Financing
Agreements.
(b) Although the Administrative Agent and Lenders regard their
conduct as proper and do not believe any member of the Borrower Group to have
any claim, cause of action, offset or defense against any Lender or the
Administrative Agent in connection with the
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Financing Agreements, Lenders and the Administrative Agent wish, and each member
of the Borrower Group agrees, to eliminate any possibility that any past
conditions, acts, omissions, events, circumstances or matters could impair or
otherwise affect any rights, interests, contracts or remedies of any Lender or
the Administrative Agent. Therefore, each member of the Borrower Group
unconditionally releases and waives as to all Lenders and the Administrative
Agent (1) any and all liabilities, indebtedness and obligations, whether known
or unknown, of any kind of any Lender or the Administrative Agent to any member
of the Borrower Group arising under the Financing Agreements and which exist on
the date hereof, except the obligations remaining to be performed by the Lenders
as expressly stated in the Financing Agreements; (2) any legal, equitable or
other obligations or duties, whether known or unknown, of the Lenders or of the
Administrative Agent to any member of the Borrower Group (and any rights of any
member of the Borrower Group against any Lender or the Administrative Agent)
arising under the Financing Agreements and which exist on the date hereof
besides those expressly stated in the Financing Agreements; (3) any and all
claims under any oral or implied agreement, obligation or understanding with any
Lender or the Administrative Agent, whether known or unknown, arising under the
Financing Agreements and which exist on the date hereof; and (4) all other
claims, causes of action or defenses of any kind whatsoever (if any), whether
known or unknown, which any member of the Borrower Group might otherwise have
against any Lender or the Administrative Agent on account of any Claims.
(c) EACH MEMBER OF THE BORROWER GROUP AGREES TO ASSUME THE RISK
OF ANY AND ALL UNKNOWN, UNANTICIPATED OR MISUNDERSTOOD DEFENSES, CLAIMS, CAUSES
OF ACTION, CONTRACTS, LIABILITIES, INDEBTEDNESS AND OBLIGATIONS WHICH ARE
RELEASED BY THIS AMENDMENT IN FAVOR OF ANY LENDER OR THE ADMINISTRATIVE AGENT,
AND EACH MEMBER OF THE BORROWER GROUP HEREBY WAIVES AND RELEASES ALL RIGHTS AND
BENEFITS WHICH IT MIGHT OTHERWISE HAVE UNDER THE LAW OF THE STATE OF NEW YORK
AND THE LAW OF THE FEDERAL DISTRICT OF MEXICO WITH REGARD TO THE RELEASE OF SUCH
UNKNOWN, UNANTICIPATED OR MISUNDERSTOOD DEFENSES, CLAIMS, CAUSES OF ACTION,
CONTRACTS, LIABILITIES, INDEBTEDNESS AND OBLIGATIONS. TO THE EXTENT (IF ANY)
WHICH ANY SUCH LAWS MAY BE APPLICABLE, EACH MEMBER OF THE BORROWER GROUP WAIVES
AND RELEASES (TO THE MAXIMUM EXTENT PERMITTED BY LAW) ANY RIGHT OR DEFENSE WHICH
IT MIGHT OTHERWISE HAVE UNDER ANY OTHER LAW OF ANY APPLICABLE JURISDICTION WHICH
MIGHT LIMIT OR RESTRICT THE EFFECTIVENESS OR SCOPE OF ANY OF ITS WAIVERS OR
RELEASES UNDER THIS AMENDMENT.
SECTION 7. REPRESENTATIONS AND WARRANTIES. In order to induce the
Lenders and the Administrative Agent to enter into this Amendment, each member
of the Borrower Group hereby represents, warrants and covenants to the Lenders
and the Administrative Agent as follows:
7.1 Immediately after giving effect to this Amendment (i) the
representations and warranties contained in the Financing Agreements (other than
those which expressly relate to a different date) are true, accurate and
complete in all material respects as if made as of the Effective Date, except to
the extent that such representations and warranties fail to be true, accurate
and complete solely as a result of a Covered Vendor Facility Default (as defined
in the
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Second Vendor Forbearance Agreement), (ii) other than to the extent expressly
acknowledged in writing by the Lenders in the Second Vendor Forbearance
Agreement, no Default or Event of Default has occurred and is continuing and
(iii) all references to the Credit Agreement in the Financing Agreements shall
be deemed to be references to the Credit Agreement as amended by this Amendment.
7.2 The Charter Documents of (i) Borrower delivered to the
Administrative Agent remain true, accurate and complete and have not been
amended, supplemented or restated subsequent to January 2002 and continue to be
in full force and effect, and (ii) each other member of the Borrower Group
delivered to the Administrative Agent on the Closing Date remain true, accurate
and complete and have not been amended, supplemented or restated subsequent to
such date and continue to be in full force and effect.
7.3 The execution, delivery and the performance of obligations of
this Amendment by each member of the Borrower Group has been duly authorized by
all requisite corporate action. This Amendment, as of the Effective Date,
constitutes the valid and binding obligations of each member of the Borrower
Group, enforceable in accordance with the terms herein.
7.4 The execution, delivery and performance of this Amendment does
not and will not (i) violate or conflict with the Charter Documents of any
member of the Borrower Group, (ii) conflict with or violate any Applicable Law,
or (iii) result in any breach of, or constitute a default (or event which with
the giving of notice or lapse of time, or both, would become a default) under,
or give to any Person any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of any Lien on any of the material
assets or properties of any member of the Borrower Group pursuant to, any
contract or other instrument relating to such assets or properties to which a
member of the Borrower Group is a party or by which any of such assets or
properties is bound or affected, except as would not, individually or in the
aggregate, materially impair the ability of the member Borrower to consummate
the transactions contemplated by this Amendment.
SECTION 8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart of a
signature page to this Amendment by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this Amendment.
SECTION 9. EFFECTIVENESS. The amendments set forth in this Amendment
shall be deemed effective upon the satisfaction, or waiver by QUALCOMM in its
sole discretion, of all of the conditions precedent (the "Effective Date") set
forth below. Upon request from the Company, the Administrative Agent shall
provide confirmation to the Company that such conditions precedent have been
satisfied or waived by the Administrative Agent.
9.1 AMENDMENT. Each member of the Borrower Group and each Lender
shall have duly executed and delivered this Amendment to the Administrative
Agent, and if so requested in writing by any Lender or the Administrative Agent,
the notarization of this
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Amendment and its immediately subsequent registration at the Public Registry of
Commerce of the Federal District of Mexico.
9.2 ACKNOWLEDGMENT OF AMENDMENT AND REAFFIRMATION OF GUARANTY. The
Administrative Agent shall have received (i) the Acknowledgment of Amendment and
Reaffirmation of Guaranty (in English and Spanish), duly executed and delivered
by each Guarantor, and (ii) a notarized acknowledgment of indebtedness
(reconocimiento de adeudo) in form and substance satisfactory to each Lender and
the Administrative Agent, which shall evidence and describe, among others, the
amount due to the Lenders under the Credit Agreement as of the Effective Date.
9.3 CERTIFIED RESOLUTIONS. The Administrative Agent shall have
received for each member of the Borrower Group a certificate of the appropriate
officers of such member of the Borrower Group dated as of the date hereof and as
of the Effective Date certifying (i) the names and true signatures of the
incumbent officers of such member of the Borrower Group authorized to sign this
Amendment, (ii) the notarized resolutions of such member's Board of Directors or
shareholders, as the Administrative Agent in its sole discretion may request,
approving and authorizing the execution, delivery and performance of this
Amendment, and (iii) that there have been no changes in the Charter Documents of
(A) Borrower since January 2002, and (B) each other member of the Borrower Group
since the date of certification thereof to the Administrative Agent in
connection with the closing of the Financing Agreements.
9.4 PAYMENT OF REIMBURSEMENT AND INDEMNIFICATION OBLIGATIONS. Each
member of the Borrower Group shall have paid to the Lenders and the
Administrative Agent all of its reimbursement and indemnification obligations
owing under Section 11.1 of the Credit Agreement, including its obligation to
pay all attorneys' fees and costs and other disbursements incurred by the
Lenders or the Administrative Agent in connection with the negotiation,
implementation, execution and enforcement of this Amendment and any acts
contemplated thereby.
9.5 XXXXXX. Borrower and each other member of the Borrower Group
shall have duly executed and delivered to each Lender one or more consolidated
Pagares, as the Lenders in their sole discretion may request, that evidences all
outstanding Obligations owed by Borrower to such Lender as of the date hereof
under the Credit Agreement.
9.6 OTHER DOCUMENTS AND ACTIONS. Borrower shall have duly executed
and delivered to the Administrative Agent any other documents (including
opinions and certificates) or taken any other actions as may be reasonably
requested by the Lenders or the Administrative Agent for purposes related to
this Amendment.
SECTION 10. GOVERNING LAW. This Amendment 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); provided, however,
that in connection with any legal action or proceeding (other than an action to
enforce a judgment obtained in another jurisdiction) brought in respect to this
Amendment in the courts of Mexico or any political subdivision thereof, this
Amendment
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shall be deemed to be an instrument made under the laws of Mexico and for such
purposes shall be governed by, and construed in accordance with, the laws of the
Federal District of Mexico.
[SIGNATURES TO FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
PEGASO COMUNICACIONES Y SISTEMAS, S.A. DE C.V.
By: /s/
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Printed Name:
Title:
PEGASO TELECOMUNICACIONES, S.A. DE C.V.
By: /s/
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Printed Name:
Title:
PEGASO PCS, S.A. DE C.V.
By: /s/
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Printed Name:
Title:
PEGASO RECURSOS HUMANOS, S.A. DE C.V.
By: /s/
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Printed Name:
Title:
PEGASO FINANZAS, S.A. DE C.V.
By: /s/
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Printed Name:
Title:
PEGASO XXXXX I, S.A. DE C.V.
By: /s/
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Printed Name:
Title:
ABN AMRO BANK N.V.
as Administrative Agent
By: /s/
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Printed Name:
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Title:
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By: /s/
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Printed Name:
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Title:
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XXXXXXXX XXXXXXXXXXXX
as a Lender
By:
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Printed Name:
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Title:
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ABN AMRO BANK N.V.
as Administrative Agent
By:
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Printed Name:
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Title:
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By:
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Printed Name:
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Title:
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XXXXXXXX XXXXXXXXXXXX
as a Lender
By: /s/
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Printed Name:
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Title: President
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TELEFONAKTIEBOLAGET X.X. ERICSSON (PUBL)
as a Lender
By: /s/
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Printed Name:
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Title:
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By: /s/
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Printed Name:
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Title:
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