Exhibit 4.3
FIRST AMENDMENT AND WAIVER dated as of December 7, 2001 (this
"Amendment"), to the Amended and Restated Credit Agreement dated as of July
25, 1997, as amended and restated as of March 29, 2001 (the "Credit
Agreement"), among GRUPO IUSACELL CELULAR, S.A. de C.V., formerly known as
Grupo Iusacell, S.A. de C.V. (the "Borrower"), the LENDERS party thereto
(the "Lenders"), and JPMORGAN CHASE BANK (formerly known as The Chase
Manhattan Bank), as Administrative Agent and Collateral Agent (the
"Agent").
WHEREAS the Borrower has requested that certain provisions of the
Credit Agreement be amended in the manner provided for in this Amendment, and
the Required Lenders are willing to agree to such amendments on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used and not defined herein shall
have the meanings given to them in the Credit Agreement, as amended hereby.
2. Amendments to the Credit Agreement. (a) Section 6.02 of the Credit
Agreement is hereby amended by deleting the word "and" at the end of clause
(f), relettering clause (g) as clause (h) and adding a new clause (g) as
follows:
"(g) Liens encumbering customary initial deposits and margin
deposits, and other Liens that are either within the general
parameters customary in the industry and incurred in the ordinary
course of business, in each case, securing Indebtedness under any
interest rate protection agreement or other interest hedging
arrangement (if such interest rate protection or other interest
hedging arrangement does not have a notional amount that, taken
together with the notional amount of all other interest rate
protection or interest rate hedging arrangements, exceeds the
principal amount of the Indebtedness of the Borrower and its
Subsidiaries with floating rates of interest) and any foreign currency
exchange agreement or other currency exchange rate hedging arrangement
and forward contracts, options, futures contracts, futures options or
similar agreements or arrangements designed to protect the Borrower or
any of its Restricted Subsidiaries from fluctuations in interest rates
or
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currency exchange rates, respectively, and entered into for
non-speculative purposes; and"
(b) Section 6.05 of the Credit Agreement is hereby amended by
deleting the word "and" at the end of clause (j), replacing the period at the
end of clause (k) with a semicolon and adding new clauses (l) and (m) as
follows:
"(l) loans or advances made by the Borrower to the Parent, in
lieu of paying dividends permitted by Section 6.08(a)(ii), at such
times and in such amounts as the Borrower would be permitted to
declare and pay dividends under Section 6.08(a)(ii); and
(m) so long as no Event of Default has occurred and is
continuing, loans or advances made by the Borrower to the Parent, in
lieu of paying dividends permitted by Section 6.08(a)(v), at such
times and in such amounts as the Borrower would be permitted to
declare and pay dividends under Section 6.08(a)(v); provided, however,
that in no event shall the sum of the loans and advances permitted by
this clause (m) and the dividends paid pursuant to Section 6.08(a)(v)
exceed $5,000,000."
(c) Section 6.08(a) of the Credit Agreement is hereby amended by
deleting the word "and" at the end of clause (iii), replacing the period at the
end of clause (iv) with "; and" and adding a new clause (v) as follows:
"(v) so long as no Event of Default has occurred and is
continuing, the Borrower may declare and pay dividends in cash with
respect to its capital stock to the Parent in an amount not to exceed
$5,000,000 in the aggregate to permit the Parent to pay fees and
out-of-pocket expenses incurred by the Parent in connection with the
acquisition of Grupo Portatel S.A. de C.V. and its subsidiaries
("Portatel") and to discharge other liabilities of the Parent incurred
in the ordinary course of business."
(d) Section 6.12(c) of the Credit Agreement is hereby amended
and restated in its entirety as follows:
"(c) permit Capital Expenditures of the Borrower and the
Subsidiaries for any fiscal year of the Borrower ending during any
period set forth below to exceed the sum of (i) the amount set forth
below opposite such period and (ii) any amount by which the amount set
forth below opposite the period during which
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the immediately preceding fiscal year ended exceeds the Capital
Expenditures and the investments made by the Borrower and the Subsidiaries
during the immediately preceding fiscal year (calculated on a consolidated
basis and in accordance with Mexican GAAP); provided, however that the
aggregate amount of Capital Expenditures permitted under paragraphs (i) and
(ii) above may be further increased on a dollar-for-dollar basis for every
dollar of Credited Capital Contributions designated for such purpose by the
Borrower in a notice to the Administrative Agent (and not designated to
permit the incurrence by the Borrower of Attributable Debt); provided,
further, that the Borrower and its Subsidiaries shall use the Credited
Capital Contributions so designated for additional Capital Expenditures
only to acquire Additional Assets constituting Collateral:
Period Amount
------ ------
01/01/01 through 12/31/01 $225,000,000
01/01/02 and thereafter $240,000,000"
(e) Section 9.01(a) of the
Credit Agreement is hereby amended and
restated in its entirety as follows:
"(a) if to the Borrower, to it at Grupo Iusacell Celular, S.A.
de C.V., Prolongacion Paseo de la Reforma 0000, Xxxxxxx Xxxxx Xx,
Xxxxxxxxxx Xxxxxxxxxx, 00000 Xxxxxx D.F., Attention of Xxxxxxx X. Xxxxx
(Telecopy No. 011-525-1-09-57-62), with a copy to Xxxx Xxxxxx Xxxxxxx,
Esq. (Telecopy No. 011-525-1-09-57-72) and a copy to Xxxxxxxx Xxxxxx,
Esq. (Telecopy No. 011-525-1-09-57-72);"
3. Waivers. (a) Solely with respect to the acquisition by the
Borrower of Grupo Portatel S.A de C.V., Portatel del Sureste S.A de C.V.,
Portatel Comercializadora S.A de C.V., Portatel Servicios S.A de C.V., Portatel
Bienes Raices S.A de C.V. and Portatel Corporativa S.A de C.V., the Required
Lenders hereby waive compliance by the Borrower with (i) Section 5.11(a) of the
Credit Agreement for a period of 21 days following the Amendment Effective
Date; (ii) Section 5.11(b) of the Credit Agreement for a period of (x) 45 days
following the Amendment Effective Date, with respect to execution and filing of
the Mortgage, (y) 90 days following the Amendment Effective Date, with respect
to registration of the Mortgage in the Public Registry, and (y) 150 days
following the Amendment Effective Date, with respect to obtaining SCT approval
for the creation of the security interest created in respect of the Concession
held
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by Portatel del Sureste S.A. de C.V., the registration of the security interest
contemplated by the Mortgage in the Telecommunications Registry maintained by
SCT, and the registration of the security interest contemplated by the Mortgage
with respect to real property, if any, specified in the Mortgage in each of the
relevant Public Registries of Property; and (iii) Sections 5.11(c) and (d) of
the Credit Agreement for a period of 45 days following the Amendment Effective
Date.
(b) The Required Lenders hereby waive compliance by the Borrower with the
provisions of Section 6.01(b) and 6.08(a) solely to permit the Borrower to
repurchase shares of the Borrower's common stock for cash in an aggregate amount
not to exceed the equivalent in US Dollars of Mexican Ps. 1,250,000.00 in
connection with the consummation of the Borrower's 30,000 for 1 reverse stock
split approved by its shareholders on March 30, 2001 and the capital reduction
in the amount of Mexican Ps. 206,245.40 that resulted therefrom to eliminate
minority shareholders.
4. Effect of Amendments and Waivers. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights or remedies of the
Lenders, the Collateral Agent or the Administrative Agent under the Credit
Agreement, as amended by this Amendment, or any other Loan Document, and shall
not alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement, as
amended by this Amendment, or any other Loan Document, all of which are ratified
and affirmed in all respects and shall continue in full force and effect.
Nothing herein shall be deemed to entitle the Borrower to a consent to, or a
waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement, as amended by this Amendment, or any other Loan Document in similar
or different circumstances. This Amendment shall apply and be effective only
with respect to the provisions of the Credit Agreement set forth herein. After
the date hereof, any reference to the Credit Agreement shall mean the Credit
Agreement as modified hereby. This Amendment shall constitute a "Loan Document"
for all purposes of the Credit Agreement and the other Loan Documents.
5. Representations and Warranties. The Borrower hereby represents and
warrants to the Agent and the Lenders as of the date hereof as follows:
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(a) After giving effect to the waiver set forth in Section 3(a) hereof, no
Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Borrower of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any person (including any governmental agency) in order
to be effective and enforceable. The Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligation of the Borrower,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
(c) All representations and warranties of the Borrower contained in
Article III of the Credit Agreement (other than representations or warranties
expressly made only on and as of the Restatement Effective Date) are true and
correct in all material respects as of the date hereof.
6. Effectiveness. This Amendment shall become effective (the "Amendment
Effective Date") when the Agent shall have received counterparts hereof duly
executed and delivered by the Borrower and the Required Lenders.
7. Expenses. The Borrower agrees to reimburse the Agent for its
out-of-pocket expenses in connection with this Amendment, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx, counsel
for the Agent.
8. GOVERNING LAW; COUNTERPARTS. (a) THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES.
(b) This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which together
shall constitute a single instrument. Delivery of an executed counterpart of a
signature page of this Amendment by facsimile transmission shall be as effective
as delivery of a manually executed counterpart hereof.
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9. Submission to Jurisdiction. The provisions of Section 9.09 of the
Credit Agreement shall apply mutatis mutandis to this Amendment and any action
or proceeding in respect hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
GRUPO IUSACELL CELULAR, S.A. de
C.V.,
by /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
by /s/ Xxxx Xxxxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxx Xxxxxxx
Title: General Counsel
JPMORGAN CHASE BANK (formerly
known as THE CHASE MANHATTAN BANK),
individually and as Administrative
Agent,
by /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
SIGNATURE PAGE to
FIRST AMENDMENT AND WAIVER
dated as of December 7, 2001
to GRUPO IUSACELL CELULAR, S.A. DE C.V.
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the First Amendment and Waiver:
Name of Institution: BNP Paribas
by /s/ Xxxxx Xxxxxxxxx
-------------------
Name: XXXXX XXXXXXXXX
Title: Head of Asset Management
Media & Telecommunications Group
by /s/ Xxxx Xxxxx
-------------------
Name: XXXX XXXXX
Title: Co-Head,
Large Corporate Origination
SIGNATURE PAGE to
FIRST AMENDMENT AND WAIVER
dated as of December 7, 2001
to GRUPO IUSACELL CELULAR, S.A. DE C.V.
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the First Amendment and Waiver:
Name of Institution: Citibank, NA
-------------------------
by /s/ Xxxxx X. Xxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxx
Title: MANAGING DIRECTOR/
VICE PRESIDENT
SIGNATURE PAGE to
FIRST AMENDMENT AND WAIVER
dated as of December 7, 2001
to GRUPO IUSACELL CELULAR, S.A. DE C.V.
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the First Amendment and Waiver:
Name of Institution: The Toronto-Dominion Bank
--------------------------
by /s/ Xxxx Xxxx
--------------------------
Name: Xxxx Xxxx
Title: Manager-Credit
Administration
SIGNATURE PAGE to
FIRST AMENDMENT AND WAIVER
dated as of December 7, 2001
to GRUPO IUSACELL CELULAR, S.A. DE C.V.
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the First Amendment and Waiver:
BBVA Bancomer, S.A.
Institucion de Banca Multiple
Name of Institution: Grupo Financiero BBVA Bancomer
-------------------------------
by /s/ Xxxxxx Xxxxxxxxx Thiesay
-------------------------------
Name: Xxxxxx Xxxxxxxxx Thiesay
Title: Director
by /s/ Xxxxxx Leoroma Xxxxxxx
-------------------------------
Name: Xxxxxx Leoroma Xxxxxxx
Title: Director
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER
dated as of December 7, 2001
to GRUPO IUSACELL CELULAR, S.A. DE C.V.
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the First Amendment and Waiver:
Name of Institution: Bank Boston N.A.
-----------------------------
by /s/ Xxxxxx Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxx Xxxxxxxxx
Title: Attorney in Fact
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER
dated as of December 7, 2001
to GRUPO IUSACELL CELULAR, S.A. DE C.V.
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the First Amendment and Waiver:
Name of Institution: Wachovia Bank, N.A.
-----------------------------
by /s/ J. Xxxxxx Xxxxxxxx, Xx.
-----------------------------
Name: J. Xxxxxx Xxxxxxxx, Xx.
Title: Senior Vice President
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER
dated as of December 7, 2001
to GRUPO IUSACELL CELULAR, S.A. DE C.V.
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the First Amendment and Waiver:
Name of Institution: ABN AMRO Bank N.V.
-----------------------
by Xxxxx Xxxxxxxx
-----------------------
Name: Xxxxx Xxxxxxxx
Title: AVP
by /s/ Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title: AVP
