Exhibit 10.48
INTERIM FUNDING AGREEMENT
by and among
PEGASO COMUNICACIONES Y SISTEMAS, S.A. DE C.V.,
THE OTHER MEMBERS OF THE BORROWER GROUP,
and
XXXXXXXX XXXXXXXXXXXX,
and Consented and Agreed to and Acknowledged by
TELEFONAKTIEBOLAGET X.X. ERICSSON (PUBL),
ABN AMRO BANK N.V.
and
ALCATEL
Dated as of January 16, 2002
INTERIM FUNDING AGREEMENT
TABLE OF CONTENTS
Page
----
Section 1. Definitions and Rules of Interpretation.............................. 2
Section 2. The Credits and General Provisions Regarding the Special Loans....... 5
Section 3. Conditions Precedent................................................. 9
Section 4. Conditional Waiver.................................................. 13
Section 5. Covenants of Borrower............................................... 13
Section 6. Forbearance......................................................... 15
Section 7. Representations and Warranties...................................... 15
Section 8. Events of Default................................................... 16
Section 9. Miscellaneous....................................................... 16
EXHIBITS AND SCHEDULES
Exhibit A-1 Form of Interim Loan Xxxxxx
Exhibit A-2 Form of Backstop Fee Loan Xxxxxx
Exhibit B Interim Business Plan
Exhibit C-1 Form of QUALCOMM Forbearance Agreement
Exhibit C-2 Form of Vendor Parties Forbearance Agreement
Exhibit D Form of Sales Transaction Proceeds Allocation Agreement
Exhibit E [Intentionally Omitted]
Exhibit F-1 Form of stock option agreement for the initial Interim Loan
Exhibit F-2 Form of stock option agreement for the initial Interim Loan
(Spanish translation)
Exhibit F-3 Form of stock option agreement for Additional Interim Loans
Exhibit F-4 Form of stock option agreement for Additional Interim Loans
(Spanish translation)
Exhibit G Form of Loan Request
Exhibit H [Intentionally Omitted]
Exhibit I Form of Amended and Restated Shareholders' Agreement
Exhibit J Form of Amendment No. 2 to the Collateral Agency Agreement
Exhibit K Form of Amendment No. 2 to the Intercreditor Agreement
Exhibit L Form of Notice and Request for Amendments and Waivers Letter
Exhibit M-1 Form of Opinion of Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx ,
special New York counsel to Borrower
INTERIM FUNDING AGREEMENT
Exhibit M-2 Form of Opinion of Xxxxxxx, Xxxxxxxx, Xxxxxx x Xxxxxxx, X.X.,
Xxxxxx counsel to Borrower
Exhibit N Form of Amendment No. 4 to the QUALCOMM Credit Agreement
Schedule 1 List of Guarantees and Counter-Guarantees that Require
Confirmation
Schedule 2 Drawdown Schedule
Schedule 3 Regulatory Approvals
ii INTERIM FUNDING AGREEMENT
INTERIM FUNDING AGREEMENT
This INTERIM FUNDING AGREEMENT, dated as of January 16, 2002
(this "Agreement"), is entered into by and among PEGASO COMUNICACIONES Y
SISTEMAS, S.A. DE C.V., a sociedad anonima de capital variable organized under
the laws of Mexico ("Borrower"), the other members of the Borrower Group, and
XXXXXXXX XXXXXXXXXXXX, a corporation organized under the laws of the State of
Delaware ("QUALCOMM"); and consented and agreed to and acknowledged, with
respect to the provisions set forth in Section 4, by TELEFONAKTIEBOLAGET X.X.
ERICSSON (PUBL), a limited liability company organized under the laws of Sweden
("Ericsson", together with QUALCOMM the "Lenders" under the Credit Agreement (as
defined below)), ABN AMRO BANK N.V., as administrative agent for the Lenders
(the "Administrative Agent"), and ALCATEL, a corporation duly incorporated under
the laws of France ("Alcatel").
RECITALS
A. Borrower has entered into an Amended and Restated Credit
Agreement, dated as of December 15, 1998, by and among Borrower, QUALCOMM, the
Lenders 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, and
Amendment No. 3 to Amended and Restated Credit Agreement, dated as of October
10, 2001 (as so amended, the "Credit Agreement").
B. Borrower has requested QUALCOMM to provide Facility-2 Loans
under the Credit Agreement to finance the payment of minimum working capital
expenditures of Borrower in accordance with the Interim Business Plan (as
defined below) subject to the terms and conditions of this Agreement, and
QUALCOMM is willing to provide such Facility-2 Loans from its unused Facility-2
Commitment subject to the terms and conditions and in reliance on the
representations and warranties set forth in this Agreement and the other
Transaction Documents (as defined below).
C. Borrower has requested QUALCOMM to amend the Credit
Agreement in order to establish a new Facility-3 under the Credit Agreement in
order that Borrower may request additional Special Loans (as defined below) to
finance the payment of minimum working capital expenditures of Borrower and
QUALCOMM has agreed to provide such Special Loans under the Credit Agreement
subject to the terms and conditions set forth in this Agreement.
D. Borrower has entered into a Common Agreement, dated as of
December 15, 1998, as the same has been and hereinafter may be amended,
supplemented, modified or restated from time to time, among Borrower, the other
members of the Borrower Group, the Alcatel Administrative Agent, the QUALCOMM
Administrative Agent, the Facility 2 Administrative Agent, the Intercreditor
Agent and the Collateral Agent (the "Common Agreement").
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements set forth below and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
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Section 1. Definitions and Rules of Interpretation.
(a) Definitions. Capitalized terms used and not otherwise
defined in this Agreement shall have the meanings given to them in the Credit
Agreement or, if not defined therein or herein, the Common Agreement. In
addition, as used in this Agreement, the following terms shall have the
following meanings:
"Additional Interim Loan Commitment" has the meaning set forth in
Section 2.3(a).
"Additional Interim Loan Xxxxxx" means the promissory note in the form
of Exhibit A-1 to be delivered for each Borrowing of Additional Interim Loans.
"Additional Interim Loans" means the Special Loans made by QUALCOMM
pursuant to Section 2.3.
"Amended and Restated Shareholders' Agreement" means the Amended and
Restated Shareholders' Agreement in the form of Exhibit I.
"Approved Sale Transaction" has the meaning assigned to such term in
the Amended and Restated Shareholders' Agreement.
"Backstop Fee" has the meaning set forth in Section 5.1(d).
"Backstop Fee Loan" has the meaning set forth in Section 2.4.
"Backstop Fee Loan Xxxxxx" means the promissory note in the form of
Exhibit A-2 to be delivered for the Borrowing of the Backstop Fee Loan.
"Borrowing" means a borrowing or advance of credit pursuant to the
terms and conditions of this Agreement.
"Buyer" has the meaning assigned to such term in the Sale Transaction
Proceeds Allocation Agreement.
"Capital Expenditures" means, for any period, consistent with U.S.
GAAP, expenditures (including amounts expended in connection with capitalization
of leases) made by Borrower to acquire or construct and maintain or repair (to
the extent that such maintenance or repair have been capitalized) fixed assets,
plant and equipment (including renewals, improvements and replacements, but
excluding repairs in the ordinary course) during such period.
"Closing Date" means the date that all the conditions precedent set
forth in Section 3.1 are satisfied (or waived by QUALCOMM in its sole
discretion).
"Definitive Agreement" means the definitive purchase or merger
agreement executed and delivered by the parties to a Sale Transaction.
"DGIE" means the Direccion General de Inversiones Extranjeras of
Mexico.
-2- INTERIM FUNDING AGREEMENT
"Divestiture Notice" has the meaning set forth in Schedule 3.
"Dollars" or "$" shall mean the lawful currency of the United States.
"Drawdown Schedule" means the anticipated disbursement schedule of
Interim Loans determined in accordance with the Interim Business Plan and set
forth in Schedule 2.
"Financing Costs" means, for any period, consistent with U.S. GAAP, any
interest or other financing costs (including, without limitation, the interest
component of capitalized leases and the amortization of capitalized financing
costs) paid in such period by Borrower other than to Alcatel, Ericsson and
QUALCOMM or paid in such period by Borrower in the ordinary course of business
relating to trade payables.
"Interim Business Plan" means the updated interim business plan dated
as of December 21, 2001, in form and substance satisfactory to QUALCOMM, which
interim business plan shall include the Operating Budget and pro forma cash
flows, covering the Interim Business Plan Period and attached as Exhibit B to
this Agreement.
"Interim Business Plan Period" shall mean the period from December 1,
2001 through March 31, 2002.
"Interim Loan" means the Special Loans made by QUALCOMM pursuant to
Section 2.2.
"Interim Loan Commitment" has the meaning set forth in Section 2.2(a).
"Interim Loan Xxxxxx" means the promissory note in the form of Exhibit
A-1 to be delivered for each Borrowing of Interim Loans.
"Known Bridge Default" means a Bridge Event of Default known by
QUALCOMM and referenced in the QUALCOMM Forbearance Agreement.
"Known Default" means a Known Bridge Default or a Known Vendor
Facilities Default.
"Known Vendor Facilities Default" means an Event of Default known by
QUALCOMM and referenced in the Vendor Parties Forbearance Agreement.
"Loan Request" means a request for loans delivered by Borrower in the
form of Exhibit G.
"Long-Term Business Plan" has the meaning set forth in Section 5.3.
"Operating Budget" means a budget of Operating Costs, Capital
Expenditures, Working Capital requirements, Financing Costs, revenues and asset
sales in form satisfactory to QUALCOMM which shall be attached to the Interim
Business Plan.
-3- INTERIM FUNDING AGREEMENT
"Operating Costs" means, for any period, consistent with U.S. GAAP, (a)
reasonable and necessary expenses of administering and operating the Business
during such period, (b) insurance premium costs paid by any member of the
Borrower Group during such period, (c) property taxes payable by any member of
the Borrower Group during such period, (d) sales and excise taxes payable by any
member of the Borrower Group during such period (other than taxes imposed on or
measured by income or receipts), (e) costs and fees, including taxes and
royalties, if any, of maintaining the Licenses payable during such period, (f)
legal, accounting and other professional fees incurred during such period in
connection with any of the foregoing items or relating to a Sale Transaction or
this Agreement, (g) fees incurred during such period in connection with the
establishment, maintenance or administration of any accounts approved by
QUALCOMM, (h) repair and maintenance costs which are expensed (as opposed to
capitalized) by any member of the Borrower Group during such period, (i) lease
payments on non-capitalized leases paid by any member of the Borrower Group
during such period, and (j) depreciation and amortization (excluding
amortization of capitalized financing costs) payable during such period.
"Process Agent" has the meaning set forth in Section 9(j).
"QUALCOMM Forbearance Agreement" means the Forbearance Agreement
executed by QUALCOMM in the form of Exhibit C-1.
"Quarterly Date" means March 31, June 30, September 30 and December 31,
as applicable.
"Sale Transaction" has the meaning assigned to that term in the Sale
Transaction Proceeds Allocation Agreement.
"Sale Transaction Proceeds Allocation Agreement" means the Sale
Transaction Proceeds Allocation Agreement in the form of Exhibit D.
"SCT" means the Secretaria de Comunicaciones y Transportes of Mexico.
"Signing Date" means the date first written above.
"Special Loan Commitments" means the Additional Interim Loan Commitment
and the Interim Loan Commitment.
"Special Loan Scheduled Maturity Date" has the meaning set forth in
Section 2.2(b).
"Special Loans" mean the Additional Interim Loans, the Backstop Fee
Loan and the Interim Loans.
"Sprint Agreements" means (i) the Operator Agreement, (ii) the
Technology and Know-How License Agreement, dated as of March 15, 2000, by and
between Holdings and Sprint Spectrum L.P. ("Sprint") and (iii) the Trademark
License Agreement, dated as of March 15, 2000, by and between Holdings and
Sprint Communications Company L.P. each as assigned by Holdings to Borrower.
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"Sprint Settlement Agreement" means the Termination, Settlement and
Mutual Release Agreement, in form and substance satisfactory to QUALCOMM, by and
among Borrower; the other members of the Borrower Group; Leap PCS Mexico, Inc.;
Xxxxxxxxx Xxxxxxx Xxxxxxxxx; Xxxxxxx Xxxxxxxxx Xxxxx; Scotiabank Inverlat, S.A.,
Institucion de Banca Multiple, Grupo Financiero Scotiabank Inverlat, formerly
known as Banco Inverlat, S.A., Institucion de Banca Multiple, Grupo Financiero
Inverlat, as trustee of trust No. 101814; International Equity Investments,
Inc.; NI Media Equity, LLC; Laif X SPRL; Sprint Spectrum L.P.; Sprint
Communications Company L.P.; Sprint Mexico, Inc.; and Sprint Corporation.
"Transaction Documents" means this Agreement, the Sale Transaction
Proceeds Allocation Agreement, the Amended and Restated Shareholders' Agreement,
and the other documents contemplated to be delivered pursuant to or as a
condition to this Agreement (other than the Definitive Agreement and the other
documents required to implement the Sale Transaction).
"Vendor Parties Forbearance Agreement" means the Forbearance Agreement
executed by the Secured Parties in the form of Exhibit C-2.
"Working Capital" means, consistent with U.S. GAAP, current operating
assets and current operating liabilities of the Borrower Group (taken as a whole
without duplication), which shall include accounts receivable, taxes receivable,
accounts payable, taxes payable, inventories and pre-paid advertising, but
excluding cash and marketable securities.
(b) Rules of Interpretation. The rules of interpretation set
forth in Section 1.02 of the Common Agreement shall be applicable to this
Agreement, mutatis mutandis, as if set forth in this Agreement.
Section 2. The Credits and General Provisions Regarding the Special
Loans.
2.1 Borrowings Under the Credit Agreement.
(a) Borrowings Under QUALCOMM's FACILITY-2 Commitments.
Borrowings of Interim Loans and the Backstop Fee Loan (each as described below)
made by Borrower shall be funded by Borrowings of Facility-2 Loans under
QUALCOMM's unused Facility-2 Commitment existing under the Credit Agreement, and
all Borrower's obligations with respect to the Interim Loans and Backstop Fee
Loan shall be secured on a senior secured basis, pari passu with the existing
Senior Indebtedness. The parties shall cooperate to obtain all necessary
consents, waivers and approvals with respect to the Interim Loans and the
Backstop Fee Loan as set forth in greater detail in Section 3.1.
(b) Additional Interim Loan Facility. Additional Interim Loans
(as described below) shall be funded pursuant to (i) a new "Facility-3" to be
established in connection with an amendment to the Credit Agreement, (ii) in the
Facility 2 Administrative Agent's sole discretion, an amendment to the Facility
2 Credit Agreement, or (iii) a new Financing Agreement, in each case, to be
executed in connection with the other conditions precedent set forth in Section
3.2 and all Borrower's obligations with respect to the Additional Interim Loans
shall be secured on a senior secured basis, pari passu with the existing Senior
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Indebtedness. The parties shall cooperate to obtain all necessary consents,
waivers and approvals with respect to the Additional Interim Loans as set forth
in greater detail in Section 3.2.
(c) Credit Agreement Terms Incorporated by Reference. All the
terms and provisions with respect to Loans under the Credit Agreement shall
apply to the Special Loans made under this Agreement as if set forth in this
Agreement. Each Facility-2 Loan advanced as an Interim Loan or the Backstop Fee
Loan and all covenants applicable to Borrower with respect to such Special Loans
shall be subject to all the terms and conditions of the Facility-2 Loans under
the Credit Agreement except to the extent such terms and conditions are
expressly modified by this Agreement.
(d) Request For Borrowings. To request a Special Loan,
Borrower shall notify QUALCOMM of such request by telephone not later than 11:00
a.m., San Diego time, at least five (5) Business Days before the date of the
proposed Borrowing which shall be consistent with the Drawdown Schedule. Each
telephonic loan request shall be irrevocable and shall be confirmed promptly by
hand delivery or facsimile to QUALCOMM of a written, signed Loan Request in the
form of Exhibit G.
(e) Availability. On the date specified for the Borrowing in
the Loan Request, subject to the terms and conditions set forth in this
Agreement, QUALCOMM shall make the amount of the Special Loan available to
Borrower by depositing the same in immediately available funds in the account of
Borrower set forth in the Loan Request. Borrowings of Special Loans shall be
permitted in accordance with the Drawdown Schedule.
2.2 The Interim Financing.
(a) Interim Loan Commitments. Subject to the terms and
conditions set forth in this Agreement, QUALCOMM agrees to make Interim Loans to
Borrower from time to time on or after the applicable conditions precedent in
Section 3 have been satisfied (or waived by QUALCOMM) in an aggregate amount up
to the lesser of (i) QUALCOMM's unused Facility-2 Commitment (which is
$96,000,000 as of the Signing Date) and (ii) $60,000,000.00 (the "Interim Loan
Commitment"). The Interim Loan Commitment is duplicative of, and not in addition
to, the Facility-2 Commitment, and utilization or reduction of one shall
automatically utilize or reduce the other. Without limiting the other provisions
of the Credit Agreement applicable to QUALCOMM's Facility-2 Commitment,
QUALCOMM's Facility-2 Commitment shall be automatically reinstated in accordance
with its terms to the extent that the Interim Loans are repaid by Borrower
pursuant to Section 2.2(b) prior to June 30, 2002.
(b) Repayment of Interim Loans. The Interim Loans, together
with all accrued and unpaid interest thereon (subject to the provisions set
forth in Section 2.2(c)), shall be due and payable on the first to occur of (i)
if QUALCOMM, in its sole discretion, has determined that the Sale Transaction
will not be consummated, the date, which date shall be on or after February 15,
2002, that is one Business Day after Borrower receives a notice of acceleration
and a demand for payment from QUALCOMM, (ii) unless otherwise extended by
QUALCOMM, in its sole discretion, March 31, 2002, or if such day is not a
Business Day, the next preceding Business Day, and (iii) if the Definitive
Agreement is entered into on or before March 31, 2002, the earlier of (x) a date
(to be specified in writing by QUALCOMM) no later than 90 calendar
-6- INTERIM FUNDING AGREEMENT
days after the closing date of the Sale Transaction, on terms and conditions set
forth in the Sale Transaction Proceeds Allocation Agreement, or (y) the date ten
Business Days after such Definitive Agreement is terminated, revoked or
rescinded by any party to the Definitive Agreement (the "Special Loan Scheduled
Maturity Date").
(c) Interest Rate Applicable to Interim Loans. Borrower shall
pay interest on the unpaid principal amount of each Interim Loan from the date
of the funding of such Interim Loan until such Interim Loan is paid at a fixed
rate equal to twelve percent (12%) per annum; provided, however, that if (i) the
Definitive Agreement is entered into by Xxxxx 00, 0000, (xx) the Sale
Transaction closes on the terms and conditions set forth in such Definitive
Agreement, and (iii) the Interim Loans are timely repaid in accordance with
Section 2.2(b)(iii)(x), then the Interim Loans will be deemed not to bear
interest. In the event that such Interim Loan is not timely repaid in accordance
with Section 2.2(b)(iii)(x), interest on such Interim Loan shall accrue at a
rate per annum equal to the Eurodollar Rate plus ten percent (10%) and the per
annum interest rate applicable to such Interim Loans shall increase by one
percent (1%) each month until such Interim Loan and all accrued interest thereon
has been paid in full; provided, however, that the interest rate on such Interim
Loans shall in no event exceed twenty-two percent (22%) per annum. All interest
under this Section 2.2(c) shall be computed on the basis of a year of 360 days
and the actual number of days elapsed.
2.3 The Additional Interim Financing.
(a) Additional Interim Loan Commitment. Subject to the terms
and conditions set forth in this Agreement, QUALCOMM agrees to make Additional
Interim Loans to Borrower from time to time after the applicable conditions
precedent in Section 3 have been satisfied (or waived by QUALCOMM) in an
aggregate amount up to $100,000,000.00 (the "Additional Interim Loan
Commitment").
(b) Repayment of Additional Interim Loans. The Additional
Interim Loans, together with all accrued and unpaid interest (subject to the
provisions set forth in Section 2.3(c)), shall be due and payable on the Special
Loan Scheduled Maturity Date.
(c) Interest Rate Applicable to Additional Interim Loans.
Borrower shall pay interest on the unpaid principal amount of each Additional
Interim Loan from the date of the funding of such Additional Interim Loan until
such Additional Interim Loan is repaid at a fixed rate equal to twelve percent
(12%) per annum; provided, however, that if (i) the Sale Transaction closes on
the terms and conditions set forth in the Definitive Agreement and (ii) the
Additional Interim Loans are timely repaid in accordance with Section 2.3(b),
then the Additional Interim Loans will have been deemed to bear interest at a
rate applicable for a Eurodollar Rate with a three-month Interest Period, which
Eurodollar Rate shall have been selected on the previous Quarterly Date, or if
such Quarterly Date is not a Business Day, the immediately preceding Business
Day. In the event that such Additional Interim Loan is not timely repaid in
accordance with Section 2.3(b), interest on such Additional Interim Loan shall
accrue at a rate per annum equal to the Eurodollar Rate plus ten percent (10%)
and the per annum interest rate applicable to such Additional Interim Loans
shall increase by one percent (1%) each month until such Additional Interim Loan
and all accrued interest thereon has been paid in full; provided, however, that
the interest rate on such Additional Interim Loans shall in no event exceed
twenty-
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two percent (22%) per annum. All interest under this Section 2.3(c) shall be
computed on the basis of a year of 360 days and the actual number of days
elapsed.
2.4 Backstop Fee Financing.
(a) Backstop Fee Loan Commitment. Upon the satisfaction of the
conditions precedent set forth in Sections 3.1 and 3.3, QUALCOMM shall have been
deemed to have made a Facility-2 Loan in the amount of $5,000,000.00 (the
"Backstop Fee Loan") pursuant to the terms and conditions of the Credit
Agreement. Upon receipt of the duly executed Backstop Fee Loan Xxxxxx from
Borrower, if requested from Borrower, QUALCOMM shall deliver to Borrower a
written acknowledgment that the Backstop Fee has been paid. QUALCOMM's
commitment under this Section 2.4(a) to make the Backstop Fee Loan is
duplicative of, and not in addition to, the Facility-2 Commitment, and
utilization or reduction of one shall automatically utilize or reduce the other.
The Facility-2 Commitments of QUALCOMM shall be reinstated in accordance with
their terms to the extent that such Backstop Fee Loan is repaid by Borrower
pursuant to Section 2.4(b) prior to June 30, 2002.
(b) Repayment of Backstop Fee Loan. The Backstop Fee Loan,
together with all accrued and unpaid interest (subject to the provisions set
forth in Section 2.4(c)), shall be due and payable on the Special Loan Scheduled
Maturity Date.
(c) Interest Rate Applicable to Backstop Fee Loan. Borrower
shall pay interest on the unpaid principal amount of the Backstop Fee Loan from
the date of the funding of the Backstop Fee Loan until such Backstop Fee Loan is
repaid at a fixed rate equal to twelve percent (12%) per annum; provided,
however, that if (i) the Sale Transaction closes on the terms and conditions set
forth in the Definitive Agreement and (ii) the Backstop Fee Loan is timely
repaid in accordance with Section 2.4(b), then the Backstop Fee Loan will have
been deemed to bear interest at a rate applicable for a Eurodollar Rate, with a
three-month Interest Period which Eurodollar Rate shall have been selected on
the previous Quarterly Date, or if such Quarterly Date is not a Business Day,
the immediately preceding Business Day. In the event that such Backstop Fee Loan
is not timely repaid in accordance with Section 2.4(b), interest on such
Backstop Fee Loan shall accrue at a rate per annum equal to the Eurodollar Rate
plus ten percent (10%) and the per annum interest rate applicable to such
Backstop Fee Loans shall increase by one percent (1%) each month until such
Backstop Fee Loan and all accrued interest thereon has been paid in full;
provided, however, that the interest rate on such Backstop Fee Loans shall in no
event exceed twenty-two percent (22%) per annum. All interest under this Section
2.4(c) shall be computed on the basis of a year of 360 days and the actual
number of days elapsed.
2.5 Participations. QUALCOMM may, without the consent of Borrower, sell
participations to one or more shareholders (or their affiliates) of Holdings
(each, a "Participant") in all or a portion of QUALCOMM's rights and obligations
under this Agreement and the Pagares (including all or a portion of its Interim
Loan Commitment and its Additional Interim Loan Commitment and the Special Loans
owing to it); provided that (a) each such Participant shall participate in the
Interim Loans (and the Interim Loan Commitment) and the Additional Interim Loans
(and the Additional Interim Loan Commitment) in a minimum percentage amount
equal to its percentage ownership interest in Holdings and (b) QUALCOMM shall
enter into a Participation Agreement with each Participant. The Participation
Agreement shall provide that
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QUALCOMM shall retain the sole right to enforce this Agreement and the
Credit Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement and the Credit Agreement except as expressly set
forth in the Participation Agreement; provided that such agreement or instrument
may provide that QUALCOMM will not, without the consent of the Participant,
agree to a reduction of the principal of or interest rate applicable to Special
Loans in which such Participant has an interest or the extension of the Special
Loan Scheduled Maturity Date (other than as contemplated by Section 2.2(b)) of
any Special Loans in which such Participant has an interest.
2.6 Termination of the Special Loan Commitments. The Special Loan
Commitments and QUALCOMM's obligations to make Special Loans thereunder shall
terminate upon the occurrence of any of the following:
(a) Event of Default. An Event of Default (other than a Known
Vendor Facilities Default) shall occur under the Financing Agreements or the
Security Documents or a Bridge Event of Default (other than a Known Bridge
Default) shall occur under the Bridge Financing Agreements or the Bridge
Security Documents.
(b) Material Adverse Effect. An event or condition shall occur
on or after the Signing Date that has or could reasonably by expected to result
in a Material Adverse Effect.
(c) Failure to Achieve Conditions Precedent by a Date Certain.
With respect to the Interim Loan Commitment, such Interim Loan Commitment shall
terminate without any further action on the part of QUALCOMM if the Closing Date
has not occurred on or before January 31, 2002. With respect to the Additional
Interim Loan Commitment, such Additional Interim Loan Commitment shall terminate
on the first to occur of (i) if QUALCOMM, in its sole discretion, has determined
that the Sale Transaction will not be consummated, the date, which date shall be
on or after February 15, 2002, that QUALCOMM delivers a notice to Borrower of
QUALCOMM's determination with respect to the Sale Transaction, (ii) without any
further action on the part of QUALCOMM, on March 31, 2002, if the conditions
precedent set forth in Section 3.2 have not been satisfied by such date and
(iii) termination of the Interim Loan Commitment.
(d) Termination of Facility-2 Commitment. If the Facility-2
Commitment under the Credit Agreement is terminated pursuant to the terms and
conditions of the Credit Agreement, the Special Loan Commitments shall terminate
without any further action on the part of QUALCOMM. A termination of the Special
Loan Commitments pursuant to Sections 2.6(a), (b) or (c) of this Agreement shall
not constitute an automatic termination of the Facility-2 Commitments under the
Credit Agreement.
Section 3. Conditions Precedent.
3.1 Conditions Precedent to the Interim Loans. The obligation
of QUALCOMM to make the initial Interim Loan is subject to the satisfaction (or
waiver by QUALCOMM in its sole discretion) of the following conditions
precedent:
(a) Sprint Settlement Agreement. Delivery to QUALCOMM of a
fully executed Sprint Settlement Agreement.
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(b) Amended and Restated Shareholders' Agreement and Amendment
to the Bylaws of each member of the Borrower Group. Delivery to QUALCOMM of the
fully executed Amended and Restated Shareholders' Agreement in the form of
Exhibit I and an amendment in form and substance reasonably satisfactory to
QUALCOMM, to the bylaws of each member of the Borrower Group.
(c) Business Plan. Delivery to QUALCOMM of the Interim
Business Plan.
(d) Amendment to Collateral Agency Agreement. Delivery to
QUALCOMM of the fully executed Amendment No. 2 to the Collateral Agency
Agreement substantially in the form of Exhibit J.
(e) Amendment to the Intercreditor Agreement. Delivery to
QUALCOMM of the fully executed Amendment No. 2 to the Intercreditor Agreement
substantially in the form of Exhibit K.
(f) Stock Option Agreement. Delivery to QUALCOMM by Holdings
of the fully executed stock option agreement in the form of Exhibit F-1 and a
fully executed Spanish translation of the stock option agreement in the form of
Exhibit F-2.
(g) Waivers and Acknowledgment Letter. Delivery to QUALCOMM of
the fully executed Notice and Request for Amendments and Waivers Letter in the
form of Exhibit L.
(h) Sale Transaction Proceeds Allocation Agreement. Delivery
to QUALCOMM of the fully executed Sale Transaction Proceeds Allocation Agreement
in the form of Exhibit D.
(i) Interim Loan Xxxxxx. Delivery to QUALCOMM of the fully
executed Interim Loan Xxxxxx in the form of Exhibit A-1 evidencing the Interim
Loans funded on such date.
(j) Funding of Backstop Fee Loan. Delivery to QUALCOMM of the
executed Backstop Fee Loan Xxxxxx in the form of Exhibit A-2 evidencing the
Backstop Fee Loan.
(k) Opinions of Counsel. Delivery to QUALCOMM of opinions,
each dated the date that all the conditions precedent in this Section 3.1 have
been satisfied and addressed to QUALCOMM and its agents, of:
(i) Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx, special New York
counsel to Borrower, in substantially the form of Exhibit M-1;
and
(ii) Xxxxxxx, Xxxxxxxx, Xxxxxx x Xxxxxxx, X.X., Xxxxxx counsel to
Borrower, in substantially the form of Exhibit M-2.
-10- INTERIM FUNDING AGREEMENT
(l) Reaffirmation of all Guarantees and Counter-Guarantees.
Delivery to QUALCOMM of fully executed reaffirmations of the guarantees set
forth on Schedule 1.
(m) Resolutions. On or before the Closing Date, all corporate,
partnership and other proceedings taken by each member of the Borrower Group or
to be taken in connection with the transactions contemplated by this Agreement,
and all documents incidental to such transactions, shall be reasonably
satisfactory in form and substance to QUALCOMM and its counsel, and QUALCOMM and
such counsel shall have received all such counterpart originals or certified
copies of such documents, opinions, certificates, and evidence as they may
reasonably request.
(n) Alcatel Lender Consents. Delivery to QUALCOMM of fully
executed consents, acknowledgements and agreements to the Transaction Documents
by the Alcatel Administrative Agent, the Intercreditor Agent and the Collateral
Agent, in form and substance satisfactory to QUALCOMM.
(o) Appointment of Process Agent. Evidence reasonably
satisfactory to QUALCOMM that (i) each member of the Borrower Group has
irrevocably appointed as its agent for service of process the Process Agent, and
(ii) the Process Agent has accepted the appointment and has agreed to forward
forthwith to each member of the Borrower Group all notices and legal process
addressed to such member of the Borrower Group upon receipt by such Process
Agent.
(p) Appointment of Process Agent under the Sale Transaction
Proceeds Allocation Agreement. Evidence reasonably satisfactory to QUALCOMM that
(i) each Appointing Shareholder (as defined in the Sale Transaction Proceeds
Allocation Agreement) has irrevocably appointed as its agent for service of
process the Person or Persons so specified in Section 10 of the Sale Transaction
Proceeds Allocation Agreement for purposes of both the Sale Transaction Proceeds
Allocation Agreement and any participation agreement under which such Appointing
Shareholder is a Participant, and (ii) each such agent has accepted the
appointment and has agreed to forward forthwith to each Appointing Shareholder
all notices and legal process addressed to such Appointing Shareholder upon
receipt by such agent.
(q) Amendment No. 4 to QUALCOMM Credit Agreement. Delivery to
QUALCOMM of the fully executed Amendment No. 4 to QUALCOMM Credit Agreement in
the form of Exhibit N.
3.2 Conditions Precedent to the Additional Interim Loans. The
obligation of QUALCOMM to make the Additional Interim Loans is subject to the
satisfaction (or waiver by QUALCOMM in its sole discretion) of the following
conditions precedent:
(a) Definitive Agreement. Delivery to QUALCOMM on or before
March 31, 2002 of the Definitive Agreement.
(b) Amendments to Applicable Financing Agreement. Delivery to
QUALCOMM on or before the date that the Definitive Agreement is delivered
pursuant to Section 3.2(a), of (i) amendments and supplements to all applicable
Financing Agreements or (ii) the duly executed new Financing Agreement, in each
case, in form and substance satisfactory to
-11- INTERIM FUNDING AGREEMENT
QUALCOMM to enable the funding of the Additional Interim Loans on a senior
secured basis, pari passu with the Senior Indebtedness.
(c) Amendments to Security Documents. Delivery to QUALCOMM on
or before the date that the Definitive Agreement is delivered pursuant to
Section 3.2(a), of (i) amendments to all Security Documents necessary or
advisable to secure Borrower's obligations with respect to the Additional
Interim Loans on a senior secured basis, pari passu with the Senior Indebtedness
and (ii) evidence of all filings and registrations with Governmental Authorities
required to create and perfect the Liens with respect to the Additional Interim
Loans.
(d) Stock Option Agreement. Delivery to QUALCOMM by Holdings
of the fully executed stock option agreement in the form of Exhibit F-3 and a
fully executed Spanish translation of the stock option agreement in the form of
Exhibit F-4.
(e) Business Plans. Delivery of (i) an updated Interim
Business Plan covering the period during which Additional Interim Loans are to
be drawn and (ii) a Long-Term Business Plan, each in form and substance
reasonably satisfactory to QUALCOMM.
(f) Additional Interim Loan Xxxxxx. Delivery of the Additional
Interim Loan Xxxxxx in the form of Exhibit A-1.
3.3 Conditions Precedent to the Backstop Fee Loan. The obligation of
QUALCOMM to make the Backstop Fee Loan is subject to Borrower's delivery of the
duly executed Backstop Fee Loan Xxxxxx in the form of Exhibit A-2 in the amount
of $5,000,000.00 evidencing the Backstop Fee Loan.
3.4 Conditions Precedent to all Special Loans. The obligation of
QUALCOMM to make any Special Loan is subject to the satisfaction (or waiver by
QUALCOMM in its sole discretion) of the following conditions:
(a) Representations and Warranties. At the time of the
Borrowing of each Special Loan and also after giving effect thereto, all
representations and warranties made in Section 7 of this Agreement and Section 5
of the Credit Agreement (unless expressly waived pursuant to this Agreement)
shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of the date
of such Borrowing, except to the extent that such representations and warranties
(i) expressly relate to an earlier date or (ii) fail to be true and correct
solely as a result of any Known Default.
(b) Loan Request. QUALCOMM shall have received a Loan Request
meeting the requirements of Section 2.1(d).
(c) No Default. Immediately before and after giving effect to
the disbursement of such Special Loan, no Default or Event of Default (other
than a Known Default) shall have occurred and be continuing.
(d) Material Adverse Effect. Since the delivery of the last
Interim Business Plan approved by QUALCOMM, no event, circumstance or condition
shall have occurred that constitutes a Material Adverse Effect.
-12- INTERIM FUNDING AGREEMENT
(e) Acknowledgment of Indebtedness. Delivery of an
acknowledgment of indebtedness instrument evidencing the Special Loan funded by
QUALCOMM on terms satisfactory to QUALCOMM notarized by a notary public
acceptable to QUALCOMM.
(f) Regulatory Approvals. Delivery of documentation reasonably
satisfactory to QUALCOMM evidencing the satisfaction of, and compliance with,
the applicable regulatory milestones on or before the dates set forth for such
milestones as set forth in Schedule 3 for those milestones that are scheduled to
occur prior to the requested date of borrowing applicable to the relevant Loan
Request unless such documentation has previously been delivered to QUALCOMM in
connection with a prior Loan Request.
(g) Other Documents. QUALCOMM shall have received such other
statements, certificates, agreements, opinions, information, documents and
evidence with respect to matters relating to or affecting the Special Loans as
QUALCOMM may reasonably request.
Section 4. Conditional Waiver. QUALCOMM, Ericsson and the
Administrative Agent (a) waive the conditions precedent in Section 4.2 of the
Credit Agreement with respect to the satisfaction of the conditions precedent
set forth in Section 3.02(b) of the Common Agreement regarding the non-existence
of an Event of Default solely with respect to Known Vendor Parties Defaults and
solely to permit funding of the Special Loans under this Agreement and consent
to the funding of such Special Loans by QUALCOMM, (b) solely to the extent
necessary to permit funding of Special Loans pursuant to this Agreement, waive
the conditions precedent under Section 3.2 of Amendment No. 3 to Amended and
Restated Credit Agreement, dated as of October 10, 2001 ("Amendment No. 3")
including the condition that requires the Ericsson Additional Commitment (as
defined in Amendment No. 3) to have been fully utilized by Borrower prior to the
making of loans by QUALCOMM under the QUALCOMM Additional Commitment (as defined
in Amendment No. 3), (c) acknowledge and consent to (i) the use of proceeds of
the Special Loans to be made under this Agreement and the Credit Agreement and
(ii) the terms and conditions of the Special Loans to be made by QUALCOMM
pursuant to this Agreement, including the interest rate and the maturity of such
Special Loans and (d) confirm and acknowledge that the Special Loans constitute
Senior Indebtedness, notwithstanding any provision of the Common Agreement to
the contrary.
Section 5. Covenants of Borrower.
5.1 Interim Business Plan and Use of Proceeds.
(a) Interim Business Plan and Operating Budget. Borrower shall
deliver an updated Interim Business Plan as may be requested by QUALCOMM from
time to time, which Interim Business Plan shall be subject to the approval of
QUALCOMM in its sole discretion. Without the prior written consent of QUALCOMM,
in its sole discretion, Borrower shall not (i) modify the Interim Business Plan
or (ii) make any expenditures not contemplated in the Interim Business Plan and
then only to the extent moneys are available to Borrower for such purpose.
(b) Operating Costs, Working Capital, Capital Expenditures and
Financing Costs. Borrower shall not expend any amount nor incur any obligation
in any monthly period
-13- INTERIM FUNDING AGREEMENT
that would cause the aggregate amount of Operating Costs, Working Capital,
Capital Expenditures and Financing Costs incurred by Borrower in such monthly
period to exceed by ten percent (10%) or more of the aggregate amount provided
for such monthly period in the Interim Business Plan, unless such expenditure
was budgeted to have been made in any prior month (limited to the Interim
Business Plan Period) in the Interim Business Plan and the timing of such
expenditure was rescheduled in the ordinary course of business. In any event,
Borrower's results for each of Operating Costs, Working Capital, Capital
Expenditures and Financing Costs may not vary on a cumulative basis from
November 30, 2001 by an amount which is more than the lesser of $5,000,000 and
20% of the applicable item, and (y) there may not be a cumulative deficit
variance greater than $5,000,000 in cash flow from operations and (z) accounts
payable (other than existing long-term Indebtedness) may at no time exceed the
amounts set forth in the Interim Business Plan by more than $5,000,000. For
purposes of calculating the variance under the Interim Business Plan, all
amounts that are denominated in Pesos shall be adjusted to reflect movement of
the Dollar/Peso exchange rate from the beginning of the Interim Business Plan
Period. The parties agree that the Dollar/Peso exchange rate on November 30,
2001 was 9.1647 Pesos per Dollar.
(c) Operating Statements. Borrower shall furnish to QUALCOMM
no later than each Monday at 11:00 a.m., San Diego time, commencing with the
first Monday after the funding of the initial Interim Loan, an operating
statement for the Business for the week ending the prior Friday, in form and
substance satisfactory to QUALCOMM. Such operating statement shall set forth for
each such period (a) all expenditures (actual and accrued detailed separately)
for Operating Costs, Working Capital, Financing Costs and Capital Expenditures,
(b) all cash received (from accounts receivables and sales) from the Business
for the prior week, (c) operating information, including without limitation,
Subscribers and other performance statistics, and (d) a status report of all
accounts payable and receivables outstanding at the end of such period.
(d) Backup Fee Loan Proceeds. Borrower shall use the proceeds
of the Backstop Fee Loan to pay the backstop commitment fee due and payable to
QUALCOMM (the "Backstop Fee") in connection with a financial accommodation
previously provided by QUALCOMM to Borrower.
(e) Future Commitments. During the Interim Business Plan
Period, Borrower shall not enter into any commitments or related group of
commitments that create, other that as provided in the approved Interim Business
Plan, a payment obligation in excess of $250,000 without the prior written
approval of QUALCOMM, in its sole discretion.
5.2 Regulatory Approvals. Borrower shall use its best efforts to
satisfy the milestones for obtaining governmental approvals on or before the
dates set forth for such milestones as set forth in Schedule 3.
5.3 Long-Term Business Plan. Borrower shall deliver, on or before
January 31, 2002, a long-term business plan with detailed budgets and pro forma
cash flows in form and substance reasonably satisfactory to QUALCOMM (the
"Long-Term Business Plan").
-14- INTERIM FUNDING AGREEMENT
5.4 Definitive Agreement. Borrower and the other members of the
Borrower Group shall not execute or cause to be executed a Definitive Agreement
without the prior written consent of QUALCOMM, provided that QUALCOMM's consent
shall not be required if Borrower has indefeasibly paid in full, in cash, all
Senior Indebtedness, all Bridge Loan Indebtedness and all other obligations and
expenses owing in respect of Senior Indebtedness and Bridge Loan Indebtedness on
or before the execution and delivery of such Definitive Agreement.
Section 6. Forbearance. Upon satisfaction of all of the conditions
precedent set forth in Section 3.1 and the funding of the initial Interim Loan,
and provided no additional defaults shall have occurred and are continuing under
the Financing Agreements, the Security Documents, the Bridge Financing
Agreements or the Bridge Security Documents, QUALCOMM (a) shall deliver the
QUALCOMM Forbearance Agreement substantially in the form of Exhibit C-1 with
respect to the existing Bridge Events of Default and (b) shall cooperate with
Borrower to obtain from the Secured Parties the Vendor Parties Forbearance
Agreement substantially in the form of Exhibit C-2 with respect to the existing
Events of Default.
Section 7. Representations and Warranties. Each member of the Borrower
Group, jointly and severally, makes the representations and warranties contained
in this Section 7 for the benefit of the QUALCOMM Lenders and the QUALCOMM
Administrative Agent.
(a) All the regulatory approvals required for the execution,
delivery and performance of each Transaction Document, and for the Borrowing and
payment of Special Loans by the Borrower, have been obtained and are in full
force and effect.
(b) The representations and warranties of each member of the
Borrower Group contained in the Credit Agreement are (before and after giving
effect to this Agreement) true and correct as if made as of the Closing Date
except to the extent that such representations and warranties (i) expressly
relate to a different date or (ii) fail to be true and correct solely as a
result of any Known Default.
(c) Each member of the Borrower Group has taken all corporate
action necessary to authorize the execution, delivery and performance by it of
each Transaction Document to which it is a party.
(d) This Agreement and each other Transaction Document, when
executed and delivered by the members of the Borrower Group on or before the
date this representation is made or deemed made, constitutes the legal, valid
and binding obligation of such member enforceable in accordance with its terms,
except as the enforceability thereof may be limited by (i) applicable
bankruptcy, insolvency and other similar laws affecting creditors' generally and
(ii) general equitable principles regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law.
(e) All authorizations, consents and permits necessary under
Applicable Law in connection with the due execution and delivery of, and
performance by each member of the Borrower Group of its obligations under, each
Transaction Document to which it is a party have been duly obtained.
-15- INTERIM FUNDING AGREEMENT
(f) No member of the Borrower Group is in default with respect
to any order of any court, arbitrator, administrative agency or other
Governmental Authority, other than any order that is the subject of a Good Faith
Contest or other order the default under which, or the non-compliance with
which, would not reasonably be expected to result in a Material Adverse Effect.
There is no injunction, writ, or preliminary restraining order of any nature
issued by an arbitrator, court or other Governmental Authority directing that
any of the transactions provided for in this Agreement or any other Transaction
Document not be consummated as herein or therein provided.
(g) No Event of Default or Bridge Event of Default has
occurred and is occurring other than the Known Bridge Defaults and the Known
Vendor Facilities Defaults.
(h) All events or conditions occurring prior to the Signing
Date that could reasonably be expected to have a Material Adverse Effect have
been previously disclosed by Borrower in writing to QUALCOMM. Since the Signing
Date, no event has occurred that could reasonably be expected to have a Material
Adverse Effect.
(i) The Interim Business Plan has been prepared by Borrower
and the other members of the Borrower Group in good faith on the basis of
assumptions that were reasonable at the time the Interim Business Plan was
prepared (or updated as required under this Agreement) and that are consistent
with the terms of all contracts, agreements and instruments (other than
contracts, agreements and instruments expressly stated in the Interim Business
Plan to be modified or terminated, if any) to which any member of the Borrower
Group is a party or by which its properties are bound.
Section 8. Events of Default. A breach of any of the covenants set
forth in Section 5 of this Agreement, the failure by Borrower to perform any of
its material obligations under this Agreement or the failure of any of
Borrower's representations to be true and correct at any time shall constitute
an Event of Default under the Credit Agreement and the Common Agreement and
QUALCOMM shall be entitled to exercise the remedies set forth in the Common
Agreement, the Security Documents or the Financing Agreements or as otherwise
available at law or in equity.
Section 9. Miscellaneous.
(a) Reference to and Effect on the Credit Agreement and the
other Financing Agreements. The execution, delivery and performance of this
Agreement shall not, except as expressly provided in this Agreement, constitute
a waiver of any provision of, or operate as a waiver of any right, power or
remedy of the Lenders and the Administrative Agent under, the Credit Agreement
or any of the other Financing Agreements.
(b) Fees and Expenses. Borrower acknowledges that all
reasonable costs, fees and expenses incurred by QUALCOMM and its counsel with
respect to this Agreement, the extension of credit under this Agreement, the
making or collection of the Special Loans, and the documents and transactions
contemplated in this Agreement shall be for the account of Borrower and shall be
payable by Borrower on demand.
-16- INTERIM FUNDING AGREEMENT
(c) Execution in Counterparts; Effectiveness. This Agreement
may be executed in any number of counterparts, and by different parties hereto
in separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts taken together shall constitute
but one and the same instrument. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this Agreement.
(d) Headings. Section and subsection headings in this
Agreement are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.
(e) Severability. If any provision contained in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
(f) Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK. EACH PARTY TO THIS AGREEMENT IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK
COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND ANY APPELLATE COURT FROM ANY SUCH COURT, FOR THE PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, AND EACH OF THE PARTIES TO THIS AGREEMENT
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO
THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE PARTIES AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS (INCLUDING MEXICO) BY SUIT ON THE JUDGMENT OR IN
ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY
RIGHT THAT QUALCOMM, THE ADMINISTRATIVE AGENT OR ANY PARTY MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AGAINST BORROWER OR
THE BORROWER GROUP OR THEIR RESPECTIVE PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
(g) Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL
-17- INTERIM FUNDING AGREEMENT
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
THE CREDIT AGREEMENT, THE PAGARES OR THE TRANSACTIONS CONTEMPLATED IN THIS
AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY TO
THIS AGREEMENT (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
(h) Currency of Payment. The obligation of Borrower and the
other members of the Borrower Group to pay in Dollars those amounts of the sums
specified to be due in Dollars, under this Agreement, the Credit Agreement, the
Xxxxxx or the applicable documents executed in connection with this Agreement
(the "Loan 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 Loan 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 Loan 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
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, the Credit Agreement, the Xxxxxx or the applicable documents
executed in connection with this Agreement.
(i) English Language. This Agreement is made in the English
language. One Spanish language translation of this Agreement prepared (if
requested by QUALCOMM) at Borrower's expense by an official public interpreter
and approved by Mexican counsel to Borrower and Mexican counsel to Lenders under
this Agreement shall be the agreed Spanish language translation of this
Agreement for all purposes. Such translation and no other may be filed in one or
more public registries in Mexico or used in any proceeding in Mexico. For all
purposes, the English language version of this Agreement shall be the original
instrument and in all cases of conflict between the English and the Spanish
versions, the English version shall control.
(j) Appointment of Process Agent. Each member of the Borrower
Group hereby agrees that service of all writs, process and summonses in any
suit, action or proceeding brought in the State of New York relating to this
Agreement or any of the other Transaction Documents may be made upon CT
Corporation System, presently located at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, U.S.A. (the "Process Agent"), and each member of the
Borrower Group hereby confirms and agrees that the Process Agent has been duly
and irrevocably appointed as its agent and true and lawful attorney-in-fact in
its name, place and stead to receive and forward such service of any and all
such writs, process and summonses for a period ending no earlier than December
31, 2003 and, thereafter, for subsequent one-year periods, so long as this
Agreement is in full force and effect, until the obligations of each member of
the Borrower Group under this Agreement have been fulfilled, the Special Loans
have been paid in full and the Special Loan Commitments have been irrevocably
terminated.
-18- INTERIM FUNDING AGREEMENT
Each member of the Borrower Group agrees that the failure of the Process Agent
to give any notice of any such service of process to such member of the Borrower
Group shall not impair or affect the validity of such service or of any judgment
based thereon. Each member of the Borrower Group hereby further irrevocably
consents to the service of process in any suit, action or proceeding in said
courts by the mailing thereof by any party hereto by registered or certified
mail, postage prepaid, at Xxxxx xx xxx Xxxxxxxxxx 000-X, Xxxx 24, Bosques de las
Xxxxx, Xxxxxx, X.X. 00000, Xxxxxx, Attention: Director General.
[SIGNATURES TO FOLLOW]
-19- INTERIM FUNDING AGREEMENT
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
PEGASO COMUNICACIONES Y SISTEMAS, S.A. DE C.V.
By: /s/ [Signature Illegible]
--------------------------------
Name:
Title:
PEGASO TELECOMUNICACIONES, S.A. DE C.V.
By: /s/ [Signature Illegible]
--------------------------------
Name:
Title:
PEGASO PCS, S.A. DE C.V.
By: /s/ [Signature Illegible]
--------------------------------
Name:
Title:
PEGASO RECURSOS HUMANOS, S.A. DE C.V.
By: /s/ [Signature Illegible]
--------------------------------
Name:
Title:
PEGASO FINANZAS, S.A. DE C.V.
By: /s/ [Signature Illegible]
--------------------------------
Name:
Title:
PEGASO XXXXX I, S.A. DE C.V.
By: /s/ [Signature Illegible]
--------------------------------
Name:
Title:
INTERIM FUNDING AGREEMENT
XXXXXXXX XXXXXXXXXXXX
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Operating Officer
INTERIM FUNDING AGREEMENT
Consented and agreed to and acknowledged, with respect to the provisions set
forth in Section 4, as of the date first written above, by:
TELEFONAKTIEBOLAGET X.X. ERICSSON (PUBL)
as a Lender
By: /s/ [Signature Illegible]
--------------------------------
Name:
Title:
By: /s/ Xxxxx Fverum
--------------------------------
Name: Xxxxx Fverum
Title:
INTERIM FUNDING AGREEMENT
ABN AMRO BANK N.V.
as Administrative Agent
By: /s/ Xxxxxxx O' X. Xxxxx
--------------------------------
Name: Xxxxxxx O' X. Xxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Group Vice President
INTERIM FUNDING AGREEMENT
ALCATEL
By: /s/ [Signature Illegible]
--------------------------------
Name:
Title:
INTERIM FUNDING AGREEMENT
Schedule 1
List of Guarantees and Counter-Guarantees that Require Confirmation
1. Guaranty, dated as of October 31, 1998, as amended
and restated on December 15, 1998, and as reaffirmed on May 27, 1999, March 7,
2001, May 23, 2001 and October 10, 2001, made by Holdings, Pegaso PCS and
Personnel Co. in favor of the Collateral Agent for the benefit of the Secured
Parties;
2. Guaranty, dated as of October 10, 2001, made by
Finanzas and Xxxxx in favor of the Collateral Agent for the benefit of the
Secured Parties;
3. Guaranty, dated as of May 27, 1999, as amended on
February 8, 2000, August 22, 2000, November 17, 2000 and March 22, 2001, as
extended on June 15, 2001 and June 22, 2001, and as further amended on June 29,
2001 and October 10, 2001, made by Holdings, Pegaso PCS and Personnel Co. in
favor of the Administrative Agent under the Bridge Loan Agreement for the
benefit of itself and the Lenders thereunder;
4. Guaranty, dated as of October 10, 2001, made by
Finanzas and Xxxxx in favor of the Administrative Agent under the Bridge Loan
Agreement for the benefit of itself and the Lenders thereunder;
5. Counter-Guaranty, dated as of May 27, 1999, as
amended on February 8, 2000, August 22, 2000, November 17, 2000 and March 22,
2001, as extended on June 15, 2001 and June 22, 2001, and as further amended on
June 29, 2001 and October 10, 2001, made by Leap in favor of QUALCOMM; and
6. Counter-Guaranty, dated as of May 27, 1999, as
amended on February 8, 2000, August 22, 2000, November 17, 2000 and March 22,
2001, as extended on June 15, 2001 and June 22, 2001, and as further amended on
June 29, 2001 and October 10, 2001, made by Xx. Xxxxxxxxx Xxxxxxx Xxxxxxxxx in
favor of QUALCOMM.
INTERIM FUNDING AGREEMENT
Schedule 2
Drawdown Schedule
January 18, 2002 $20,000,000
January 25, 2002 $10,000,000
February 8, 2002 $10,000,000
February 22, 2002 $10,000,000
March 8, 2002 $10,000,000
INTERIM FUNDING AGREEMENT
Schedule 3
Regulatory Approvals
(a) By January 22, 2002, delivery of evidence
satisfactory to QUALCOMM of the filing of a writ before the DGIE requesting an
official communication containing an authorization allowing the participation of
one hundred percent (100%) of foreign investment directly in Borrower or
indirectly through Holdings.
(b) If, as a consequence of the filing of the writ
described in paragraph (a) above, and in order for the DGIE to authorize the
participation of one hundred percent (100%) of foreign investment as described
therein, the DGIE formally requests the divestiture of the wireless mobile
telephony business on the one hand and the wireless fixed telephony business on
the other hand in two separate titles of concession (the "Divestiture Notice"),
then, within a period of ten Business Days after Borrower and/or Holdings
receive such Divestiture Notice, Borrower or Holdings, as the case may be, shall
deliver evidence satisfactory to QUALCOMM of the filing of a writ before the SCT
requesting (i) the divestiture of the wireless mobile telephony business on the
one hand and the wireless fixed telephony business on the other hand in two
separate titles of concession, and (ii) the assignment of the wireless fixed
telephony business to Finanzas (or to any other qualified assignee member of the
Borrower Group).
(c) If any of the authorizations provided in paragraphs
(a) or (b) above is granted, then Borrower or Holdings, as the case may be,
shall obtain any and all approvals necessary from any Governmental Authority to
amend its and/or their bylaws, as the case may be, in order to allow the
participation of one hundred percent (100%) of foreign investment directly in
Borrower or indirectly through Holdings.
All of the above in the understanding that QUALCOMM's Mexican
counsel shall be given the opportunity to (a) attend each of the meetings that
take place in order to obtain any of the authorizations described above, and (b)
comment and complement each of the writs to be filed before any Governmental
Authority, including, without limitation, the SCT and the DGIE, provided that
Borrower or Holdings, as the case may be, shall not be compelled to include such
comments in any such writs.
INTERIM FUNDING AGREEMENT
