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LOAN AGREEMENT
BETWEEN
PAKISTAN WIRELESS HOLDINGS LIMITED
AND
THE LENDERS WHO FROM TIME TO TIME
ARE PARTIES HERETO
AUGUST 18, 1997
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Certain Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Accounting Principles. . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE II THE LOANS AND RELATED MATTERS. . . . . . . . . . . . . . . . . .10
2.01 Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
2.02 Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
2.03 Repayment of Principal . . . . . . . . . . . . . . . . . . . . . . .10
2.04 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
2.05 Prepayment of Loans. . . . . . . . . . . . . . . . . . . . . . . . .11
2.06 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
2.07 Application of Payments. . . . . . . . . . . . . . . . . . . . . . .13
2.08 Initial Lenders' Representations and Warranties. . . . . . . . . . .13
ARTILE III REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . .14
3.01 Organization and Qualification . . . . . . . . . . . . . . . . . . .14
3.02 Corporate Power. . . . . . . . . . . . . . . . . . . . . . . . . . .15
3.03 Subsidiaries and Investments . . . . . . . . . . . . . . . . . . . .15
3.04 Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
3.05 Authorization, Governmental Approvals. . . . . . . . . . . . . . . .16
3.06 Validity and Binding Effect. . . . . . . . . . . . . . . . . . . . .16
3.07 Ownership of Borrower. . . . . . . . . . . . . . . . . . . . . . . .16
3.08 No Event of Default; Compliance with Agreements. . . . . . . . . . .17
3.09 Solvency, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . .17
3.10 Regulations G and X. . . . . . . . . . . . . . . . . . . . . . . . .17
3.11 Investment Company; Public Utility Holding Company . . . . . . . . .17
3.12 [Reserved.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
3.13 Brokerage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
3.14 Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . .18
3.15 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . .18
3.16 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
3.17 Affiliated Transactions. . . . . . . . . . . . . . . . . . . . . . .18
3.18 Title to Properties. . . . . . . . . . . . . . . . . . . . . . . . .19
3.19 Bank Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . .19
3.20 Outstanding Indebtedness . . . . . . . . . . . . . . . . . . . . . .19
3.21 Operations, Agreements, Liabilities. . . . . . . . . . . . . . . . .19
3.22 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . .19
3.23 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . .19
3.24 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
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ARTICLE IV CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . .20
4.01 Representations, Warranties, Covenants . . . . . . . . . . . . . . .20
4.02 Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
4.03 Contributions to Borrower. . . . . . . . . . . . . . . . . . . . . .21
4.04 Collateral Items . . . . . . . . . . . . . . . . . . . . . . . . . .21
4.05 Other Transactions . . . . . . . . . . . . . . . . . . . . . . . . .21
4.06 Fees and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . .21
4.07 Closing under IWCH Loan Agreement. . . . . . . . . . . . . . . . . .21
4.08 Vanguard Purchase. . . . . . . . . . . . . . . . . . . . . . . . . .22
4.09 SAWC Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
4.10 License Matters. . . . . . . . . . . . . . . . . . . . . . . . . . .22
4.11 Newco Shareholders Agreement . . . . . . . . . . . . . . . . . . . .22
4.12 Commitment and Structuring Fees. . . . . . . . . . . . . . . . . . .22
4.13 Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
ARTICLE V COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
5.01 Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . . .22
5.02 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . .24
5.03 Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . .28
ARTICLE VI DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
6.01 Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . .29
6.02 Consequences of Event of Default . . . . . . . . . . . . . . . . . .31
6.03 Rights of Setoff . . . . . . . . . . . . . . . . . . . . . . . . . .32
6.04 Other Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
ARTICLE VII SUCCESSORS AND ASSIGNS; PARTICIPATIONS. . . . . . . . . . . . .32
7.01 Successors and Assigns in General. . . . . . . . . . . . . . . . . .32
7.02 Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
7.03 Further Assurance. . . . . . . . . . . . . . . . . . . . . . . . . .33
ARTICLE VIII MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . .33
8.01 Modifications, Amendments or Waivers . . . . . . . . . . . . . . . .33
8.02 No Implied Waivers; Cumulative Remedies; Writing Required. . . . . .33
8.03 Reimbursement of Expenses; Taxes . . . . . . . . . . . . . . . . . .33
8.04 Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
8.05 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
8.06 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
8.07 Governing Law; Waivers and Jurisdiction. . . . . . . . . . . . . . .35
8.08 Herein, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
8.09 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
8.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
8.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
8.12 Brokers Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
8.13 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . .37
8.14 Payment Set Aside. . . . . . . . . . . . . . . . . . . . . . . . . .37
8.15 Complete Agreement . . . . . . . . . . . . . . . . . . . . . . . . .38
8.16 No Strict Construction . . . . . . . . . . . . . . . . . . . . . . .38
8.17 Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
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LIST OF EXHIBITS
Exhibit A - Initial Lenders and Loan Amounts
Exhibit B - Opinions of Borrower's Counsel
Exhibit C - Form of Exchange Agreement
Exhibit D - Forms of Exchangeable Senior Secured Note:
Exhibit D-1 - Tranche A Note
Exhibit D-2 - Tranche B Note
Exhibit E - Form of Pledge Agreement
Exhibit F - Form of Security Agreement
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PAKISTAN WIRELESS HOLDINGS LIMITED
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of August 18, 1997, is made between
PAKISTAN WIRELESS HOLDINGS LIMITED, a private company established under the laws
of Mauritius ("BORROWER"), the Persons who are named on the attached EXHIBIT A
(the "INITIAL LENDERS") and the Persons who may hereafter become additional
Lenders.
The Borrower has requested that the Initial Lenders make, and the
Initial Lenders have agreed to make, certain Loans, as described in greater
detail in this Agreement.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements set forth herein and intending to be legally bound
hereby, covenant and agree as follows:
ARTICLE I
DEFINITIONS
1.01 CERTAIN DEFINITIONS. In addition to any other terms defined
elsewhere in this Agreement, the following terms will have the respective
meanings set forth below:
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such first
Person. For purposes of this definition, "control" will include the direct or
indirect ownership of and/or right to vote or control the vote with respect to,
Equity Securities representing 20% or more of the aggregate voting power of such
first Person's voting Equity Securities (either based on the quantity of such
first Person's voting Equity Securities which are actually outstanding or on a
fully-diluted basis).
"AGENT" means Toronto Dominion Investments, Inc., or any successor
thereto, in its capacity as the collateral agent as the case may be pursuant to
the Security Agreement or the Pledge Agreement.
"APPLICABLE RATE" at any time means a per annum rate equal to the
following:
----------
Rate
----
On and after the date of this Agreement and
prior to February 18, 1998 14%
On and after February 18, 1998 and prior to
May 18, 1998 15%
----------
Rate
----
On and after May 18, 1998 and prior to
August 18, 1998 17%
On and after August 18, 1998 and prior to
September 18, 1998 19%
On and after September 18, 1998 and prior
to October 18, 1998 21%
On and after October 18, 1998 and prior to
November 18, 1998 23%
On and after November 18, 1998 25%
"BORROWER" has the meaning set forth in the preamble to this
Agreement.
"BORROWER CONTRIBUTION" means the contribution by Borrower to Newco of
493,510 shares of IWCH Voting Common Stock and $17,461,000 in cash, pursuant to
the Newco Shareholders Agreement.
"BUSINESS DAY" means any day other than a Saturday, a Sunday, a public
holiday under the laws of the State of New York or the State of California or a
day on which banking institutions are authorized or obligated to close in New
York, New York or San Francisco, California.
"CAPITALIZED LEASE" means a lease under which the obligations of the
lessee would, in accordance with GAAP consistently applied, be included in
determining total liabilities as shown on the liability side of a balance sheet
of the lessee.
"CAPITALIZED LEASE OBLIGATIONS" means the amount of the liability
reflecting the aggregate discounted amount of future payments under all
Capitalized Leases, calculated in accordance with GAAP consistently applied and
Statement of Financial Accounting Standards No. 13.
"CCL SHARE PURCHASE AGREEMENT" means the Share Purchase Agreement
dated July 17, 1997 between Continental Communications Limited ("CCL") and Newco
and the related Supplement to Share Purchase Agreement dated August 18, 1997
between CCL and IWCH.
A "CHANGE IN OWNERSHIP" will occur (i) if, for any reason (including
any issuance or transfer of Equity Securities of any Person or any merger,
consolidation or other transaction), Borrower ceases to be a Subsidiary of IWCH
or IWCH ceases to have the uncontrolled and unlimited right (directly or through
one or more of its Wholly-Owned Subsidiaries) to designate a majority of the
members of the board of directors or similar officials
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of Borrower, or (ii) if any Core Transaction-Related Document, or any right of
Borrower, Newco or Mobilink thereunder, terminates or ceases to be in effect, if
all such terminations or cessations which have occurred since the date of this
Agreement have had, or could reasonably be expected to have, a Material Adverse
Effect.
"CLOSING" means the making of the Loans under this Agreement.
"COLLATERAL AGREEMENTS" means the Security Agreement, the Senior
Pledge Agreement, and all other collateral security agreements or other
documents executed and delivered in connection with the Loans from time to time.
"CORE EQUITY DOCUMENTS" means the Exchange Agreement, the Warrants,
the IWCH Charter, the IWCH Sixth Amended and Rested Investor Rights Agreement
dated as of the date of this Agreement, and the Amended and Restated
Registration Rights Agreement dated as of the date of this Agreement among IWCH
and the "Stockholders" referred to therein.
"CORE FINANCING DOCUMENTS" means the Core Loan Documents and the Core
Equity Documents.
"CORE LOAN DOCUMENTS" means this Agreement, the Disclosure Letter, the
Exchange Agreement, the Pledge Agreement, the Security Agreement, the Notes and
the Warrants.
"CORE PAKISTAN DOCUMENTS" means the Share Purchase Agreements, the
Mobilink Shareholders Agreement, the Newco Shareholders Agreement, the
Memorandum of Understanding and the IWC Group Agreement.
"CORE TRANSACTION-RELATED DOCUMENT" means the Core Loan Documents, the
Core Equity Documents and the Core Pakistan Documents.
"DISCLOSURE LETTER" means the letter addressed to the Initial Lenders
from Borrower and dated the date of this Agreement disclosing certain matters
relating to this Agreement.
"DISTRIBUTION" means any dividend or other distribution or payment by
a Person (other than a natural person) with respect to its Equity Securities, or
any redemption, acquisition, purchase or other retirement of any Equity Security
of such Person, any of its Subsidiaries, or any Person of which such Person is a
Subsidiary or an Investee, in each case whether in cash, securities or other
property.
"EQUITY DOCUMENTS" the Core Equity Documents and all other documents,
agreements and instruments executed at any time in connection therewith.
"EQUITY SECURITY" of any Person means any capital stock, partnership
interest, membership interest or other ownership or equity interest or security
of or in such Person, any phantom equity, profit participation, appreciation or
similar right with respect to such Person, or
3
any security or other right which directly or indirectly is convertible into or
exercisable or exchangeable for any other Equity Security of such Person.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXCHANGE AGREEMENT" means the Exchange Agreement dated as of the date
hereof in the form of the attached EXHIBIT C between IWCH and the Initial
Lenders, as such agreement is in effect from time to time.
"EXERCISE OR EXCHANGE SECURITIES" means the Warrants, the Series H
Stock issuable upon the exchange of the Notes pursuant to the Exchange
Agreement, the IWCH Common Stock issuable upon the conversion of such Series H
Stock (or upon the conversion of Series H Stock issued upon the conversion of
other Series H Stock) and the IWCH Common Stock issuable upon the exercise of
the Warrants.
"FINANCING DOCUMENTS" means the Loan Documents and the Equity
Documents.
"GAAP" means generally accepted accounting principles as promulgated
by the Financial Accounting Standards Board, as in effect from time to time
(subject to the provisions of Section 1.02).
"GUARANTEE" means any guarantee of the payment or performance of any
Indebtedness or other obligation or any other arrangement whereby credit is
extended to an obligor on the basis of any promise of another Person to pay
money or any other arrangement having substantially similar economic effect,
including where the same is expressed in terms of an obligation to (i) pay the
Indebtedness or other monetary obligations of such obligor, (ii) purchase an
obligation owed by such obligor, or (iii) maintain the capital, working
capital, solvency or general financial condition of such obligor, whether or not
any such arrangement is listed on the balance sheet of such other Person or
referred to in a footnote thereto, but will not include endorsements of items
for collection in the ordinary course of business. Subject to the final
sentence of the definition of the term "Indebtedness," the amount of any
Guarantee will be equal to the amount of the obligation so guaranteed or
otherwise supported or, if not a fixed or determined amount, the maximum amount
guaranteed or supported.
"INDEBTEDNESS" of any Person will include (i) all obligations for
borrowed money (including obligations incurred in exchange or replacement
thereof), (ii) all obligations evidenced by any note, bond, debenture or other
debt security, (iii) the balance deferred and unpaid of the purchase price for
any property or services (excluding unsecured trade payables incurred in the
ordinary course of business which are not more than 90 days past due or which
are in an aggregate amount for all such more-than-90-day-past-due trade payables
which does not exceed $500,000), (iv) all Capitalized Lease Obligations, (v) all
obligations arising under acceptance facilities, (vi) the undrawn face amount of
all outstanding letters of credit for the benefit of the Person in question and
(without duplication) all unreimbursed drafts drawn thereunder, (vii) all
obligations secured by a Lien on any property of the Person in question, (viii)
all obligations under interest rate or currency exchange or swap agreements,
(ix) all obligations under any Guarantee, and (x) all asserted withdrawal
liabilities under any employee benefit or welfare plan,
4
if and to the extent the foregoing (other than items described in clause (vi)
above) would be required to be reflected on a balance sheet of the Person in
question prepared in accordance with GAAP. For purposes of this Agreement, the
"amount" at any time of any Indebtedness of a Person as to which the recourse of
any other Person is limited to one or more assets of such first Person will not
exceed the fair market value of such asset(s) at such time (determined without
regard to any Lien relating to such Indebtedness).
"INDENTURE" means the Indenture dated as of August 15, 1996 between
IWCH and Marine Midland Bank, as Trustee, as in effect on the date of this
Agreement.
"INITIAL LENDERS" has the meaning set forth in the preamble to this
Agreement.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended.
"INVESTEE" means any Person (other than a Subsidiary of Borrower) in
which Borrower, any of its Subsidiaries or any other Investee has any direct or
indirect Investment (either itself or through one or more of its direct or
indirect Subsidiaries or Investees), including any Subsidiary of any other
Investee.
"INVESTMENT" means any amount paid for liabilities or assets of, or
loaned, advanced or contributed to, or acquisition for consideration of any
Equity Security or Indebtedness of, any other Person, or any other item that is
or would be classified as an investment on a balance sheet prepared in
accordance with GAAP. The term "Investment" will include the acquisition of a
company, business or product line.
"IWC GROUP AGREEMENT" means the IWC Group Agreement dated as of
August 18, 1997 between PWH and Vanguard Pakistan, together with the Voting
Trust Agreement dated on or about August 13, 1997 between Borrower and Vanguard
Pakistan.
"IWCH" means International Wireless Communications Holdings, Inc., a
Delaware corporation.
"IWCH CHARTER" means the Amended and Restated Certificate of
Incorporation of IWCH, in the form attached to the IWCH Loan Agreement.
"IWCH COMMON STOCK" mean IWCH Voting Common Stock or IWCH Non-Voting
Common Stock.
"IWCH LOAN AGREEMENT" means the Loan Agreement dated as of the date
hereof between IWCH and the Initial Lenders, as that Agreement is in effect from
time to time.
"IWCH NON-VOTING COMMON STOCK" means Class 2 Common Stock, par value
$0.01 per share, of IWCH.
"IWCH VOTING COMMON STOCK" means Class 1 Common Stock, par value $0.01
per share, of IWCH.
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"LAW" will be construed broadly to include any foreign, national,
federal, state, provincial, local or other law, rule, regulation, statute,
ordinance, judgment, decree, order, policy, guideline, directive, common law,
pronouncement, treaty, accord or similar item of any legislative, executive,
judicial or other governmental entity or authority.
"LENDER" means any holder of a Note.
"LIEN" means any security interest, pledge, bailment (in the nature of
a pledge or for purposes of security), mortgage, deed of trust, the grant of a
power to confess judgment, conditional sales and title retention agreement
(including any lease in the nature thereof), charge, encumbrance, restrictions
or other similar arrangement or interest in real or personal property.
"LOAN" has the meaning set forth in Section 2.1.
"LOAN DOCUMENTS" means the Core Loan Documents and all other
documents, agreements and instruments executed at any time in connection
therewith.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, properties, assets, liabilities, conditions (financial or otherwise)
or prospects (x) of Borrower, taking into account the direct and indirect
ownership interests of Borrower in its Subsidiaries and the Investees, or (y) of
Mobilink and its Subsidiaries taken as a whole, (b) the right or ability of
Borrower to influence the management and affairs of Newco or the rights of Newco
to influence the management and affairs of Mobilink and its Subsidiaries, (c)
the ability of Borrower or IWCH to perform any of its respective obligations
under the Loan Documents, or the ability of any Lender or Agent to exercise any
right or remedy with respect to, or otherwise to realize upon, any of the
security for the Loans under the Collateral Agreements or any other right or
remedy under any Loan Document, if the same would materially impair the value or
collectibility of the Notes (considered without regard to the right to exchange
the Notes pursuant to the Exchange Agreement), or (d) the ability of any Person
(other than any holder of any Exercise or Exchange Securities) to perform any of
its obligations under the Equity Documents, or the ability of any holder of
Exercise or Exchange Securities to exercise any rights or remedy under any
Equity Documents, if the same would materially impair the value of the Exercise
or Exchange Securities.
"MATURITY DATE" means August 17, 2002.
"MEMORANDUM OF AGREEMENT" means the Memorandum of Agreement dated July
16, 1997 among Saif, SAWC, MIDC and Newco.
"MIDC" means Motorola International Development Corporation, a
Delaware corporation.
"MOBILINK" means Pakistan Mobile Communications (Pvt) Ltd., a limited
liability company organized under the laws of Pakistan.
6
"MOBILINK SHAREHOLDERS AGREEMENT" means the Restated and Amended
Shareholders Agreement dated as of August __, 1997 among MIDC, Saif and Newco,
together with the letter agreement dated as of such date among MIDC, Saif and
Newco relating to the business plan, debt to equity ratio, recapitalization,
sale of shares and other matters concerning Mobilink.
"MOTOROLA SHARE PURCHASE AGREEMENTS" means the Share Purchase
Agreement dated July 17, 1997 between MIDC and Newco, together with the letter
agreement between them dated July 17, 1997 with respect to the disclosure of
certain items, together with the Escrow Agreement to be entered into pursuant
thereto.
"NEWCO" means International Wireless Communications Pakistan Limited,
a company formed under the laws of Mauritius.
"NEWCO SHAREHOLDERS AGREEMENT" means the Amended and Restated
Shareholders' Agreement dated as of August 13, 1997 among Newco, Borrower,
Vanguard Pakistan and SAWC, together with the Letter Supplemental to
Shareholders Agreement Relating to International Wireless Communications
Pakistan Limited dated July 16, 1997 between MIDC, Borrower and SAWC and the
letter agreement dated August 13, 1997 among Borrower, Vanguard Pakistan and
SAWC regarding certain costs.
"NOTE" means a promissory note of Borrower issued pursuant to this
Agreement and in the form of the attached EXHIBIT D-1 or the attached EXHIBIT
D-2, including all amendments, modifications, extensions, replacements,
substitutions, renewals, refinancings or refundings thereof in whole or in part.
"ORGANIZATIONAL DOCUMENTS" has the meaning set forth in Section 3.01.
"PARTICIPANT" has the meaning set forth in Section 7.02.
"PARTICIPATING AGENT" has the meaning set forth in Section 7.02.
"PERMITTED INDEBTEDNESS" means (i) Capitalized Lease Obligations, to
the extent that the aggregate principal amount thereof does not exceed
$1,000,000 at any time outstanding, (ii) all obligations incurred in the
ordinary course of business under acceptance facilities, (iii) the undrawn
amount of letters of credit obtained in the ordinary course of business and all
unreimbursed drafts thereunder, (iv) Indebtedness secured by Permitted Liens,
and (v) all obligations under interest rate or currency exchange or swap
agreements entered into in the ordinary course of business.
"PERMITTED LIENS" means the Liens described in clauses (1) through (9)
of Section 5.02(b).
"PERSON" means any individual, corporation, partnership, limited
liability company, trust or other entity, including any governmental entity or
agency.
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"PLEDGE AGREEMENT" means the Pledge Agreement between Borrower and the
Agent, for the benefit of the Lenders, dated as of the date hereof, in the form
of the attached EXHIBIT E, as such agreement is in effect from time to time.
"POTENTIAL EVENT OF DEFAULT" means any occurrence, condition, act or
omission which, with the passage of time or the giving of notice, or both, would
constitute an Event of Default.
"QUARTERLY PAYMENT DATE" means the 17th day of each November,
February, May and August, beginning with November 17, 1997.
"REQUISITE LENDERS" means Lenders which hold Notes which represent a
majority of the aggregate unpaid principal amount of the outstanding Notes.
"SAIF" means Saif Telecom (Pvt) Ltd., a company organized under the
laws of Pakistan.
"SAWC" means South Asia Wireless Communications (Mauritius) Limited,
a corporation formed under the laws of Mauritius and a wholly-owned subsidiary
of Asia Infrastructure Fund.
"SECURITY AGREEMENT" means the Security Agreement between Borrower and
the Agent, for the benefit of the Lenders, dated the date hereof in the form
attached hereto as EXHIBIT F, providing for Borrower's grant to the Agent, for
the benefit of the Lenders, of a security interest in all of Borrower's assets,
and all other agreements, instruments and documents attached thereto, referred
to therein or delivered in connection therewith, as any or all of the foregoing
is in effect from time to time.
"SERIES H STOCK" means Series H-1 Preferred Stock, and Series H-2
Preferred Stock, each par value $0.10 per share, of IWCH.
"SHARE PURCHASE AGREEMENTS" means the CCL Share Purchase Agreement and
the Motorola Share Purchase Agreement.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, trust, association or other business
entity of which (i) if a corporation, a majority of the total voting power of
shares of stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by that Person or one or more
direct or indirect Subsidiaries of that Person or a combination thereof, or
(ii) if a partnership, limited liability company, association or other business
entity, a majority of the partnership or other voting or economic ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more direct or indirect Subsidiaries of that Person or a
combination thereof, in each case including control by agreement. A Person or
Persons will be deemed to have a majority ownership interest in a partnership,
limited liability
8
company, association or other business entity if such Person or Persons is
allocated a majority of partnership, limited liability company, association or
other business entity gains or losses or is or controls a managing director,
managing member, manager, trustee, general partner or similar official or Person
with respect to such partnership, limited liability company, association or
other business entity.
"TDI" means Toronto Dominion Investments, Inc.
"TRANCHE A LOANS" has the meaning set forth in Section 2.01.
"TRANCHE A NOTES" has the meaning set forth in Section 2.02.
"TRANCHE B LOANS" has the meaning set forth in Section 2.01.
"TRANCHE B NOTES" has the meaning set forth in Section 2.02.
"TRANSACTION-RELATED DOCUMENTS" means the Loan Documents, the Equity
Documents, the Core Pakistan Documents, and all other documents, agreements and
instruments executed at any time in connection with the Core Pakistan Documents.
"20% LENDER" means any Lender which, together with its Affiliates,
holds Notes representing not less than 20% of the aggregate unpaid principal
amount of the outstanding Notes or which represent an aggregate unpaid principal
amount of the Notes which is not less than the aggregate unpaid principal amount
of the Notes held by any other Person and such other Person's Affiliates.
"UCC" means the Uniform Commercial Code as in effect in any applicable
jurisdiction.
"UNRESTRICTED DISPOSITION PROCEEDS" means the Net Proceeds of any sale
or liquidation of any Investment in any Unrestricted Subsidiary or Unrestricted
Affiliate (each foregoing capitalized term used in this definition having the
meaning set forth in the Indenture).
"VANGUARD" means Vanguard Cellular Financial Corporation, a Delaware
corporation.
"VANGUARD PAKISTAN" means Vanguard Pakistan, Inc., a Delaware
corporation.
"WARRANT" means any Warrant, as that term is defined in the IWCH Loan
Agreement.
"WHOLLY-OWNED SUBSIDIARY" of any Person means any other Person of
which all of the Equity Securities are owned by such first Person, either
directly or indirectly through one or more Wholly-Owned Subsidiaries of such
first Person.
1.02 ACCOUNTING PRINCIPLES. The classification, character and
amount of all assets, liabilities, capital accounts and reserves and of all
items of income and expense to be determined, and any consolidation or other
accounting computation to be made, and the interpretation of any definition
containing any financial term, pursuant to this Agreement or any
9
other Loan Document will be determined and made in accordance with GAAP
consistently applied, unless such principles are inconsistent with the express
requirements of this Agreement; PROVIDED that if, because of a change in GAAP
after the date of this Agreement, Borrower would be required to alter a
previously utilized accounting principle, method or policy in order to remain in
compliance with GAAP, such determination will continue to be made in accordance
with Borrower's previous accounting principles, methods and policies unless
Requisite Lenders agree to allow Borrower to recompute any relevant amount to
reflect any such accounting change.
ARTICLE II
THE LOANS AND RELATED MATTERS
2.01 LOANS.
(a) MAKING OF LOANS. Subject to the terms and conditions
of this Agreement and relying upon the representations, warranties and covenants
of Borrower and IWCH set forth in this Agreement and the other Financing
Documents, at the Closing the Initial Lenders will make loans (the "LOANS") to
Borrower in the respective amounts set forth opposite their names on the
attached EXHIBIT A. The Loans will be made simultaneously, in two tranches,
with the Loans made by the Initial Lenders named under the heading "Tranche A
Lenders" on the attached EXHIBIT A being "TRANCHE A LOANS" and the Loans made by
the Initial Lenders named under the heading "Tranche B Lenders" on the attached
EXHIBIT A being "TRANCHE B LOANS."
(b) FUNDING FEE. In consideration of the making of the
Loan made by an Initial Lender hereunder, at the Closing Borrower will pay to
such Initial Lender a funding fee in the amount of 1% of the amount of the Loan
made by such Initial Lender at the Closing.
2.02 NOTES. The obligation of Borrower to repay the Loans and
interest thereon will be evidenced by Notes dated the date of the Closing,
payable as specified in this Agreement to the order of the payee thereof, and
bearing interest and maturing as provided in this Agreement. Notes in the form
of the attached EXHIBIT D-1 ("TRANCHE A NOTES") will be issued in respect of the
Tranche A Loans, and Notes in the form of the attached EXHIBIT D-2 ("TRANCHE B
NOTES") will be issued in respect of the Tranche B Loans. Each Lender will, and
is hereby authorized by Borrower to, endorse on the schedule annexed to any Note
an appropriate notation evidencing the date and amount of each payment of
principal or interest by Borrower with respect thereto, and such notations will
be presumed correct until the contrary is established; PROVIDED that the failure
to make or any error in making any such notation will not limit or expand or
otherwise affect the obligations of Borrower under this Agreement, any Note or
any other Loan Document.
2.03 REPAYMENT OF PRINCIPAL. Borrower will repay in full the
entire unpaid principal amount of the Notes, and all unpaid accrued interest
thereon, on August 10, 2002.
10
2.04 INTEREST.
(a) INTEREST RATES; PAYMENTS. Interest will accrue from
time to time on the unpaid principal amount of each Note at the Applicable Rate,
based on a 365- or 366-day year (as the case may be) and the actual number of
days elapsed. All unpaid accrued interest on the Notes will be due and payable
in full on the Maturity Date and, to the extent not paid (whether or not due),
will be compounded on each Quarterly Payment Date. In addition, all accrued and
unpaid interest on the Notes will be paid upon the payment in full of the entire
outstanding principal amount of Notes and, if payment in full is not made when
due, thereafter on demand.
(b) ADDITIONAL INTEREST. After the occurrence of and
during the continuance of any Event of Default, the outstanding principal amount
of the Notes, and, to the extent permitted by applicable law, all accrued and
unpaid interest thereon and all other amounts, fees and obligations then due and
payable to any Lender under any Note, this Agreement and any other Loan
Document, will bear interest at a rate per annum which is 200 basis points in
excess of the Applicable Rate then in effect, and such interest will be payable
on demand.
(c) SAVING CLAUSE. Notwithstanding any other provision
contained in this Agreement, the Notes or any of the other Loan Documents to the
contrary, the aggregate interest rate per annum charged with respect to the
Loans (including all charges and fees which are required to be treated as
interest pursuant to applicable laws imposing a maximum rate of interest) will
not exceed the maximum rate per annum permitted by applicable law. If that the
aggregate interest rate per annum payable with respect to the Loans (including
all charges and fees which are required to be treated as interest under
applicable laws imposing a maximum rate of interest) exceeds the maximum legal
rate, then (i) Borrower will pay the Lenders interest at the maximum permitted
rate only, (ii) Borrower will continue to make such interest payments at the
maximum permitted rate until all such interest payments and other charges and
fees payable hereunder or under the other Loan Documents (in the absence of such
legal limitations) have been paid in full, (iii) any interest in excess of the
maximum permitted rate received by any Lender will, at such Lender's option, be
applied to a prepayment of principal of the Loans or refunded to Borrower, and
(iv) neither Borrower nor any other Person will have any right of action against
any Lender for any damages or penalty arising out of the payment or collection
of any such excess interest.
2.05 PREPAYMENT OF LOANS.
(a) OPTIONAL PREPAYMENTS. Borrower will have the right, at
its option, to prepay the unpaid principal amount of the Notes and/or unpaid
interest accrued thereon in whole at any time or in part from time to time,
without premium or penalty.
(b) REQUIRED PREPAYMENTS.
(i) FROM CERTAIN PROCEEDS. Not later than the
Business Day after the receipt thereof, Borrower will use all of the cash
proceeds (net of related transaction expenses and an estimate of any resulting
taxes required to be paid) from any sale or disposition
11
of assets of Borrower or the liquidation or otherwise in respect of any
Investment, or from any Distribution received by Borrower, to prepay the unpaid
principal amount of the Notes and unpaid accrued interest thereon (in whole or
in part, as the full application of such net proceeds permits), without premium
or penalty.
(ii) UPON CERTAIN OTHER EVENTS. The entire unpaid
principal amount of the Notes and all unpaid accrued interest thereon will be
immediately due and payable (without premium or penalty) upon (A) the sale of
all or substantially all of Borrower's, Newco's or Mobilink's consolidated
assets (computed on a consolidated basis either according to net book value,
determined in accordance with GAAP consistently applied, or fair market value,
determined by Borrower's Board of Directors in its reasonable good faith
judgment), (B) a Change in Ownership, or (C) a Liquidity Event, as that term is
defined in the IWCH Loan Agreement.
2.06 PAYMENTS.
(a) NOTICE, PLACE AND MANNER OF PAYMENTS. All payments
(including prepayments) to be made to any Lender in respect of any Note or other
amount under any other Loan Document will be made in lawful money of the United
States of America, by wire transfer of immediately available funds for the
account of the payee thereof to an account(s) specified by such payee. Promptly
after request by Borrower, each Lender will provide Borrower with instructions
for any such wire transfer. If no such instructions are received, then Borrower
may make any such payment (in lawful money of the United States of America) by
cashier's or certified check delivered to the place for notice to such Lender in
accordance with Section 8.05. Any such payment will be deemed received when
such wire transfer is received or when such check is deemed received in
accordance with this Agreement. Any payment deemed received after 1:00 p.m.,
New York, New York, time on any day will be deemed to have been paid by Borrower
on the next succeeding Business Day. In the case of any payment to be made
pursuant to Section 2.05, Borrower will give notice (which may be withdrawn by
contrary notice given on or prior to the date specified for payment, in the case
of any payment to be made pursuant to Section 2.05(a), or any payment
anticipated to be required by Section 2.05(b) if the event in question does not
occur on the specified date) to each Lender of each such payment not later than
1:00 p.m., New York, New York, time, on the second Business Day preceding the
date upon which such payment is to be made. Such notice will specify the
aggregate amount to be paid to all Lenders, the payment date, and the
application of such aggregate payment. Borrower will be liable for, and will
indemnify and hold harmless each Lender in respect of, all reasonable costs,
losses, liabilities and expenses incurred by such Lender by reason of any
failure by Borrower to make any payment when due or on any date so specified by
Borrower, whether or not any notice of such payment is subsequently withdrawn.
All payments under this Agreement or any other Loan Document will be made
without setoff, offset, deduction or counterclaim, free and clear of all taxes,
levies, imports, duties, fees and charges, and without any withholding,
restriction or conditions imposed by any governmental authority. If Borrower is
required by any law to deduct, setoff or withhold any amount from or in respect
of any payment to any Lender under this Agreement or any other Loan Document,
then the amount so payable to such Lender will be increased as may be necessary
so that, after making all required deductions, setoffs and
12
withholdings, such Lender will receive an amount equal to the sum it would have
received had no such deductions, setoffs or withholding been made. Once repaid,
no amount of any Loan may be reborrowed.
(b) PAYMENTS OF CERTAIN AMOUNTS PRIOR TO APPLICATION TO
NOTES. Prior to their application to the principal amount of any Note or
interest thereon pursuant to Section 2.07, all payments made by Borrower will be
applied (i) first, to the payment of all expenses, fees and other amounts
(including attorneys' fees and other legal expenses which may be payable) for
which Borrower is obligated to pay any Agent under and in accordance with this
Agreement or any other Loan Document, pro rata among the Agents according to the
respective amounts of such items which are payable to them, and (ii) second, to
the payment of all expenses, fees and other amounts (other than such principal
and interest) for which Borrower is obligated to pay the Lenders under and in
accordance with this Agreement or any other Loan Document, pro rata among the
Lenders according to the respective amounts of such items which are payable to
them.
2.07 APPLICATION OF PAYMENTS.
(a) AS AMONG THE NOTES. Subject to the requirements of
Section 2.06(b), all payments in respect of the Notes will be made pro rata
among the Lenders, based on the aggregate amount of the unpaid accrued interest
on the Notes held by each Lender and the unpaid principal amount of such Notes.
Each Lender agrees that, if such Lender receives a payment which is in excess of
the amount which such Lender is entitled to receive by virtue of the operation
of Section 2.06(b) and the preceding sentence, then such Lender will transfer a
portion of such payment to one or more other Lenders or other Persons in order
that full effect may be given to such Section and the preceding sentence.
(b) AS BETWEEN PRINCIPAL AND INTEREST. Each payment in
respect of any Note will be applied (i) first, to reduce the unpaid accrued
interest on such Note (whether or not such interest is then due and payable), on
a last-accrued, first-paid basis, and (ii) second, to reduce the unpaid
principal amount of such Note.
2.08 INITIAL LENDERS' REPRESENTATIONS AND WARRANTIES. Each
Initial Lender makes the following representations and warranties (which
representations and warranties Borrower is relying upon in entering into this
Agreement), with respect to itself and not with respect to any other Initial
Lender:
(a) The Notes which such Initial Lender may acquire will be
acquired for such Initial Lender's own account, not as nominee or agent, and not
with a view to the resale or distribution of any part thereof in violation of
any applicable federal or state securities laws, and such Initial Lender has no
present intention of selling, granting a participation in or otherwise
distributing any such Note. Such Initial Lender has no contract, undertaking,
agreement or arrangement with any Person to sell, transfer or grant
participations to any other Person with respect to any such Note.
13
(b) Such Initial Lender believes that it has received all
of the information which it considers necessary or appropriate for deciding
whether to acquire Notes. Such Committed Investor has had an opportunity to ask
questions and receive answers from Borrower regarding the terms and conditions
of the offering of the Notes and the business, properties, prospects and
financial conditions of the Company. The foregoing representation will not
limit or modify any representation or warranty of Borrower or any other Person
made in any Financing Document.
(c) Such Initial Lender is an investor in securities of
companies in the development stage and acknowledges that it is able to fend for
itself, can bear the economic risk of its investment in the Notes and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Notes. If such Initial
Lender is not a natural person, then such Committed Investor was not organized
for the purpose of acquiring Notes.
(d) Such Initial Lender understands that the Notes are
characterized as "restricted securities" under the federal securities laws,
inasmuch as they are being acquired from Borrower in a transaction not involving
a public offering and that under such laws and applicable regulations such
securities my be resold under the 1993 Act only under certain circumstances. In
this connection, such Initial Lender represents that it is familiar with
Rule 144 promulgated under the 1933 Act, as presently in effect, and understands
the resale limitations imposed thereby and by the 1933 Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
As a material inducement to the Initial Lenders to make the Loans and
each Lender to accept any Note, Borrower hereby makes the following
representations and warranties (which representations and warranties will
survive the execution and delivery of this Agreement and each issuance of Notes)
that, except as set forth on the Disclosure Letter (with a cross-reference in
the Disclosure Letter indicating the Section of this Article III to which each
disclosure thereon relates), after giving effect to the Borrower Contribution
and all related contemporaneous transactions pursuant to the Transaction-Related
Documents (except where otherwise expressly indicated):
3.01 ORGANIZATION AND QUALIFICATION. Borrower, each of its
Subsidiaries and each Investee is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its purported organization, possesses all material licenses,
permits and authorizations necessary to own its properties and to carry on its
businesses as now being conducted and as presently proposed to be conducted, and
is duly qualified to do business in each jurisdiction in which it is required to
be so qualified, except insofar as all failures to so qualify, in the aggregate,
have not had, and are not reasonably expected to have, a Material Adverse
Effect. Borrower has provided the Initial Lenders with correct and complete
copies of the articles or certificate of incorporation, bylaws and similar
organizational or constitutional documents (including any such items which may
come into existence after the date
14
of this Agreement, and in each case as in effect from time to time, the
"ORGANIZATIONAL DOCUMENTS") of Borrower, each of its Subsidiaries and each
Investee.
3.02 CORPORATE POWER. Borrower, each of its Subsidiaries and each
Investee which is a party thereto has the requisite corporate power and
authority to execute, deliver and perform this Agreement, each of the other
Transaction-Related Documents to which it is or may become a party
(collectively, the "TRANSACTION-RELATED DOCUMENTS"). Borrower, each Subsidiary
of Borrower and each Investee has all requisite corporate or other power and
authority under the laws of its jurisdiction of incorporation to own and operate
its properties and to carry on its businesses as now conducted and as presently
proposed to be conducted.
3.03 SUBSIDIARIES AND INVESTMENTS. Borrower does not have, and has
not ever had, any Subsidiary or Investee other than any Subsidiary named under
the heading "Subsidiaries", or any Investee named under the heading "Investees,"
on the Disclosure Letter, and, except as contemplated by the Core Pakistan
Documents, neither Borrower nor any of its Subsidiaries owns or has any right to
acquire any Equity Security or any other Investment in any other Person. The
Disclosure Letter sets forth the authorized Equity Securities of each Subsidiary
of Borrower and each Investee, the record and beneficial ownership of its Equity
Securities and the jurisdiction of its purported organization. All such Equity
Securities which are indicated on the Disclosure Letter to be owned by Borrower
or a Subsidiary of Borrower are validly issued, fully-paid and nonassessable.
3.04 CONFLICT.
(a) GENERALLY. Neither the execution and delivery by
Borrower of this Agreement or any Transaction-Related Document to which it is or
may become a party, nor the borrowings contemplated by the provisions of this
Agreement, nor the execution, issuance and delivery of the Notes to evidence
such borrowings and in payment of interest thereon, nor the consummation of the
transactions herein or therein contemplated to be consummated by Borrower, nor
compliance by Borrower with the terms, conditions and provisions hereof or
thereof, will (i) conflict with or result in a breach or violation of any of the
terms, conditions or provisions of any Organizational Document of Borrower, any
of its Subsidiaries or any Investee, any law (including any usury laws
applicable to the Loans or the Notes), or any agreement, instrument or document
to which Borrower, any of its Subsidiaries or any Investee is a party or by
which Borrower, any of its Subsidiaries, any Investee or any of their respective
properties is bound, or constitute a default under or right to terminate or
modify any of the foregoing, or (ii) result in the creation or imposition of any
Lien (other than the Liens in favor of the Agents and the Lenders arising
pursuant to the Collateral Documents and such other matters of the type
described in clause (i) or clause (ii) above which in the aggregate have not
had, and are not reasonably expected to have, a Material Adverse Effect).
(b) CERTAIN ACTIONS. Without limiting the foregoing, and
without implying that Borrower or IWCH is required to take any action described
in clause (ii) or clause (iii) below, neither the Indenture nor any other
agreement, instrument or document to which IWCH or any of its Subsidiaries or
any Investee is a party or by which any of them or any of
15
their respective properties is bound, nor any law: (i) prohibits Borrower
from applying the proceeds described in Section 2.05(b)(i) in the manner
described in Section 2.05(b)(i) or causing them to be so applied, (ii)
prohibits Borrower from applying the proceeds of capital contributions to
Borrower made by IWCH or any of its Subsidiaries as may be permitted by the
Indenture to the prepayment or repayment of the unpaid principal of and
unpaid accrued interest on the Notes, in whole or in part, or (iii) prohibits
IWCH from causing the net proceeds of the issuance or sale of Equity
Securities of IWCH (other than Disqualified Stock, as that term is defined in
the Indenture) or Subordinated Indebtedness (as that term is defined in the
Indenture), or causing not less than 50% of any Unrestricted Disposition
Proceeds, to be contributed to the capital of Borrower and used by Borrower
to repay or prepay the unpaid principal of or unpaid accrued interest on the
Notes, in whole or in part.
3.05 AUTHORIZATION, GOVERNMENTAL APPROVALS. The execution, delivery
and performance by Borrower of the Transaction-Related Documents to which
Borrower is or may become a party, the borrowings contemplated by the provisions
of this Agreement, the execution, issuance and delivery of the Notes to evidence
such borrowings and in payment of interest thereon, and the consummation by
Borrower of the transactions herein and therein contemplated to be consummated
by Borrower have been duly authorized by all necessary corporate action on the
part of Borrower. No authorization, consent, approval, license or exemption of,
and no registration, notice, qualification, designation, declaration or filing
with or to, any court, government or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, and no vote,
authorization, consent or approval of directors, shareholders or similar Persons
with respect to Borrower, is necessary to or for the valid execution and
delivery by Borrower of the Transaction-Related Documents to which Borrower is
or may become a party, the borrowings contemplated by the provisions of this
Agreement, the valid execution, issuance and delivery by Borrower of the Notes
to evidence such borrowings and in payment of interest thereon, or the
consummation by Borrower of the transactions herein and therein contemplated to
be consummated by Borrower, other than such items the absence of which, in the
aggregate, has not had, and are not reasonably expected to have, a Material
Adverse Effect.
3.06 VALIDITY AND BINDING EFFECT. Each Transaction-Related
Document to which Borrower is a party has been, and each Transaction-Related
Document to which Borrower may become a party will (when it becomes a party) be,
duly and validly executed and delivered by Borrower, and each such
Transaction-Related Document constitutes (or, as the case may be, will
constitute) a legal, valid and binding obligation of Borrower, and all such
obligations of Borrower are (or, as the case may be, will be) enforceable in
accordance with their respective terms.
3.07 OWNERSHIP OF BORROWER. The Disclosure Letter sets forth the
record and beneficial ownership of the outstanding Equity Securities of Borrower
and of each Subsidiary of IWCH of which Borrower is a Subsidiary, and the
authorized Equity Securities of Borrower. Borrower is not under any obligation
(contingent or otherwise) to redeem or otherwise acquire any Equity Securities
of Borrower or any other Person or to effect any other Distribution. Borrower
is a Wholly-Owned Subsidiary, and an "Unrestricted Subsidiary" (as that term is
defined in the Indenture), of IWCH.
16
3.08 NO EVENT OF DEFAULT; COMPLIANCE WITH AGREEMENTS. No event,
act or omission has occurred, and no condition exists, which constitutes an
Event of Default or a Potential Event of Default. Neither Borrower, any of its
Subsidiaries nor any Investee is in violation in any material respect of any
provision of any of its Organizational Documents or any term of any material
agreement, instrument, contract or commitment to which it is a party or by which
it or any of its assets is bound, except in such respects as, in the aggregate,
have not had, and are not reasonably expected to have, a Material Adverse
Effect.
3.09 SOLVENCY, ETC. Borrower is solvent as of immediately prior to
the Closing and will not become insolvent as a result of the consummation of the
transactions contemplated by the Transaction-Related Documents (including the
borrowings under this Agreement and the Borrower Contribution). Borrower is
immediately prior to the Closing, and after giving effect to the transactions
contemplated by the Transaction-Related Documents will be, able to pay its debts
as they become due, and Borrower's property immediately prior to the Closing
has, and after giving effect to such transactions will have, a fair salable
value (determined on a going concern basis) greater than the amounts required to
pay its debts (including a reasonable estimate of the amount of all contingent
liabilities). Borrower immediately prior to the Closing has, and after giving
effect to the transactions contemplated by the Transaction-Related Documents
will have, adequate capital to conduct its business. No transfer of property is
being made and no obligation is being incurred in connection with the
transactions contemplated by the Transaction-Related Documents with the intent
to hinder, delay or defraud either present or future creditors of Borrower or
any other Person.
3.10 REGULATIONS G AND X. Borrower is not engaged in the business
of extending credit for the purpose of purchasing or carrying margin stock (as
defined, from time to time, in Regulation G promulgated by the Board of
Governors of the Federal Reserve System), and no part of the proceeds of the
Loans will be used by Borrower, any of its Subsidiaries or any Investee, to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock in violation of Regulation G or
Regulation X promulgated by the Board of Governors of the Federal Reserve
System.
3.11 INVESTMENT COMPANY; PUBLIC UTILITY HOLDING COMPANY. Neither
Borrower nor any of its Subsidiaries is an "investment company," or under the
control of an "investment company," within the meaning of the Investment Company
Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended. Borrower is not subject to any other law limiting its ability to
incur indebtedness for borrowed money.
3.12 [RESERVED.]
3.13 BROKERAGE. Other than pursuant to Section 2.01(b), there are
no claims for brokerage commissions, finders' fees, closing fees or similar
compensation in connection with the transactions contemplated by this Agreement
or any other Transaction-Related
17
Document (other than pursuant to this Agreement) based on any arrangement or
agreement binding upon Borrower or any of its Subsidiaries.
3.14 OTHER AGREEMENTS. Each of the Transaction-Related Documents
(other than the Loan Documents) has been duly executed and delivered by each of
the parties thereto and is in full force and effect, there has been no material
amendment or modification thereof, and there are no uncured breaches or defaults
on the part of any party thereunder, except in such respects as in the aggregate
have not had, and are not reasonably expected to have, a Material Adverse
Effect. Borrower has furnished each Initial Lender, as requested, with an
accurate and complete copy of each such Transaction-Related Document and the
Indenture, each as currently in effect. The representations and warranties made
by each party to each such Transaction-Related Document (in each case,
disregarding any materiality qualification set forth therein) are true and
correct, except in such respects as in the aggregate have not had, and are not
reasonably expected to have, a Material Adverse Effect as compared with the
state of affairs which would exist if all such representations and warranties
were true in all respects, and are incorporated herein and made by Borrower
hereunder (PROVIDED that, notwithstanding any provision of any such
Transaction-Related Document to the contrary, each such representation and
warranty as so incorporated will survive the execution and delivery of this
Agreement and the issuance of the Notes hereunder). The Borrower Contribution
and each other transaction contemplated by such Transaction-Related Documents to
be consummated on the Closing Date have been and will be duly consummated as
contemplated in such Transaction-Related Documents, subject to the terms and
conditions therein, with only those waivers of conditions thereto which in the
aggregate have not had, and are not reasonably expected to have, a Material
Adverse Effect.
3.15 COMPLIANCE WITH LAWS. Borrower, each of its Subsidiaries and
each Investee has complied and is in compliance with all laws applicable to it
or its business or property, except in such respects as in the aggregate have
not had, and are not reasonably expected to have, a Material Adverse Effect.
3.16 LITIGATION. There are no actions, suits or proceedings
pending or, to Borrower's knowledge, threatened against or affecting Borrower,
any of its Subsidiaries, any Investee or any of their respective businesses or
assets, before any court or governmental department, agency or instrumentality,
which (a) which reasonably be expected to prevent the transactions contemplated
by this Agreement or (b) otherwise involve or pertain to Borrower, any of its
Subsidiaries or any Investee (other than, in the case of this clause (b) only,
those which, in the aggregate, have not had, and are not reasonably expected to
have, a Material Adverse Effect).
3.17 AFFILIATED TRANSACTIONS. Other than any Core
Transaction-Related Document, no officer, director or similar official of
Borrower, no Affiliate of Borrower, no Person who holds 5% or more of the IWCH
Common Stock on a fully-diluted basis, no individual related by blood or
marriage to any Person described in this Section 3.17, and no entity in which
any Person described in this Section 3.17 directly or indirectly owns any
beneficial interest of 10% or more, is a party to any agreement, contract,
commitment, transaction or arrangement with Borrower, any of its Subsidiaries or
any Investee.
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3.18 TITLE TO PROPERTIES. Borrower, each of its Subsidiaries and
each Investee has good and marketable title to all of its material properties,
assets and other rights which it purports to own or which are reflected in its
books and records, free and clear of all Liens, except for Permitted Liens, and
all such assets are in good working order and condition, ordinary wear and tear
excepted, except in such respects as, in the aggregate, have not had, and are
not reasonably expected to have, a Material Adverse Effect. Borrower owns no
material asset other than the securities described on the Pledged Securities
Schedule attached to the Pledge Agreement and its rights under the
Transaction-Related Documents.
3.19 BANK ACCOUNTS. Borrower maintains no bank accounts or money
market accounts.
3.20 OUTSTANDING INDEBTEDNESS. Neither Borrower nor Newco has any
Indebtedness other than the Loans (in the case of Borrower) and loans from its
shareholders pursuant to the Newco Shareholders Agreement (in the case of
Newco).
3.21 OPERATIONS, AGREEMENTS, LIABILITIES. Neither Borrower nor any
of its Subsidiaries has conducted any business or engaged in any operations
other than in preparation for the consummation of the transactions contemplated
by the Transaction-Related Documents. Other than the Core Transaction-Related
Documents, neither Borrower nor any of its Subsidiaries is a party to (nor is
any of its assets or business subject to) any material document, agreement or
arrangement, and neither Borrower nor any of its Subsidiaries has any material
liability or obligation other than its liabilities and obligations under such
Documents and those which in the aggregate do not have, and are not reasonably
expected to have, a Material Adverse Effect.
3.22 FINANCIAL STATEMENTS. Borrower has provided to the Initial
Lenders the audited consolidated and consolidating balance sheets for Mobilink
and (if any) its Subsidiaries for the fiscal year ended December 31, 1996 and
the related consolidated and consolidating statements of income and cash flows.
Each of the foregoing financial statements (including in all cases the notes
thereto, if any) is accurate and complete in all material respects, is
consistent with the books and records of the Person in question (which, in turn,
are accurate and complete in all material respects), has been prepared in
accordance with GAAP or other applicable local accounting principles,
consistently applied, and presents fairly the financial condition, results of
operations and/or cash flows (as the case may be) of the Person in question in
accordance with GAAP or other applicable local accounting principles applied on
a consistent basis as of the dates and for the periods set forth therein.
3.23 NO MATERIAL ADVERSE CHANGE. Since December 31, 1996 nothing
has occurred (other than matters which have occurred in the ordinary course of
Mobilink's business prior to the date of this Agreement or which have been
disclosed in the Share Purchase Agreements) or failed to occur, and no condition
or fact exists, with respect to Borrower, any Subsidiary of Borrower, any
Investee or otherwise, except as, in the aggregate, have not had, and are not
reasonably expected to have, a Material Adverse Effect.
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3.24 DISCLOSURE. Neither any Transaction-Related Document nor any
other agreement, document or certificate when furnished to any Initial Lender by
or on behalf of Borrower or any of its Subsidiaries in connection with the
transactions contemplated hereby contains or will contain any untrue statement
of a material fact or omits or will omit to state a material fact necessary in
order to make the statements contained herein and therein, at the time(s) made,
not misleading other than as to matters which in the aggregate have not had, and
are not reasonably expected to have, a Material Adverse Effect.
ARTICLE IV
CONDITIONS PRECEDENT
The respective individual obligations of the Initial Lenders to make
the Loans at the Closing and the effectiveness thereof are subject to the
satisfaction of the conditions set forth below, any of which may be waived with
respect to any Initial Lender only in a writing to that effect which is executed
by such Initial Lender:
4.01 REPRESENTATIONS, WARRANTIES, COVENANTS. The representations
and warranties contained in this Agreement and in the other Financing Documents
(considered without regard to any materiality qualification set forth therein)
will be true and correct as of the time of the Closing as though then made
(giving effect to the Borrower Contribution and other transactions, as may be
indicated in or with respect to such representations and warranties), except in
such respects as in the aggregate have not had, and are not reasonably expected
to have, a Material Adverse Effect as compared with the state of affairs which
would exist if all such representations and warranties were true in all
respects; and Borrower will have performed all obligations to be performed by it
under the Transaction-Related Documents to which it is a party (considered
without regard to any materiality qualification set forth therein) at or before
the time of the Closing, except in such respects as, in the aggregate, have not
had, and are not reasonably expected to have, a Material Adverse Effect as
compared with the state of affairs which would exist if such obligations had
been complied with in all respects.
4.02 DELIVERIES. There will be delivered to such Initial Lender:
(i) Opinions of Borrower's counsel as to the matters set
forth on the attached EXHIBIT B;
(ii) A duly completed and executed original Note (of the
proper Tranche) in the principal amount of the Loan to be made by such Initial
Lender;
(iii) Correct and complete copies of each Collateral
Agreement, this Agreement, each other Financing Document to be executed and
delivered in connection with the Closing, each other Transaction-Related
Document executed and delivered (or to be executed and delivered) prior to or in
connection with the Borrower Contribution or the contemporaneous related
transactions and all Organizational Documents of Borrower, its Subsidiaries and
the Investees;
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(iv) Certified copies of all documents evidencing corporate
action taken by Borrower with respect to the Financing Documents and the other
Transaction-Related Documents;
(v) A certificate executed on behalf of Borrower certifying
that the conditions set forth in Sections 4.01, 4.03, 4.04 and 4.05 have been
fully satisfied at the time of the making of the Loans;
(vi) A certificate or certificates, signed by the secretary
or a similar official of Borrower certifying as to the names of the respective
officers or other officials of Borrower or IWCH who are authorized to sign this
Agreement and the other Financing Documents on Borrower's or IWCH's behalf and
as to specimens of the true signatures of such officials, on which each Lender
may conclusively rely until a revised certificate is similarly so delivered; and
(vii) A certificate of Borrower signed on Borrower's behalf
by Borrower's chief financial officer regarding the matters set forth in Section
3.09.
4.03 CONTRIBUTIONS TO BORROWER. Borrower will have received
contributions to its capital by International Wireless Communications, Inc., a
Delaware corporation and a Wholly-Owned Subsidiary of IWCH, consisting of not
less than 493,510 shares of IWCH Voting Common Stock.
4.04 COLLATERAL ITEMS. There will have been delivered to the Agent
duly executed financing statements and other documents in form and substance as
any 20% Lender may request and may reasonably be required to effect the
provisions of the Collateral Agreements, and all "Collateral" (as such term is
defined in the Pledge Agreement) and all other items of collateral as to which
the security interest of the Agent (for the benefit of the Lenders) may be
perfected by possession, together with such stock or similar powers or other
forms of assignment, undated and executed in blank, as the Agent may request
with respect to such Collateral.
4.05 OTHER TRANSACTIONS. The Borrower Contribution and all other
contemporaneous transactions contemplated by the Transaction-Related Documents
will be consummated contemporaneously with the making of the Loans (in each
case, without any waiver or amendment thereof by any party), and all parties
thereto will stand ready to consummate such transactions.
4.06 FEES AND EXPENSES. Borrower will have paid all fees and
expenses required to be paid pursuant to Section 2.01(b) or Section 8.03.
4.07 CLOSING UNDER IWCH LOAN AGREEMENT. The Initial Closing (as
that term is defined in the IWCH Loan Agreement) will be consummated
contemporaneously with the Closing.
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4.08 VANGUARD PURCHASE. At the time of the Closing, Vanguard (or
an Affiliate thereof) will own shares of Newco representing 6.52% of the shares
of Newco.
4.09 SAWC ACTIONS. SAWC will have invested in Newco cash in the
amount of not less than $23,620,000 (representing the proceeds of contributions
to SAWC by Asian Infrastructure Fund), and SAWC will be a wholly-owned
subsidiary of Asian Infrastructure Fund.
4.10 LICENSE MATTERS. Such Initial Lender will be satisfied that
Mobilink will be granted the licenses required to conduct its business and
conducted and proposed or contemplated to be conducted.
4.11 NEWCO SHAREHOLDERS AGREEMENT. Borrower will have obtained,
and delivered to such Initial Lender true and correct copies of such waivers
and/or amendments of the provisions of the Newco Shareholders Agreement as may
be necessary to permit the consummation of the transactions contemplated by the
Loan Documents and to permit Borrower to perform its obligations thereunder.
4.12 COMMITMENT AND STRUCTURING FEES. IWCH will have paid in full
the commitment and structuring fees payable by it pursuant to the letter
agreement dated July 28, 1997 among IWCH, Borrower, TDC, Vanguard and any other
Person which has theretofore become a party thereto.
4.13 PROCEEDINGS. All legal proceedings in connection with the
transactions contemplated by this Agreement and the other Transaction-Related
Documents will be in form and substance satisfactory to such Initial Lender,
and such Initial Lender will have received all such counterpart originals or
certified or other copies of such documents and proceedings in connection with
such transactions, in form and scope satisfactory to such Initial Lender's
counsel, as such Initial Lender may reasonably request.
ARTICLE V
COVENANTS
5.01 AFFIRMATIVE COVENANTS. Borrower covenants that, until the
payment in full of the principal amounts of the Notes and all accrued interest
thereon and all fees, other amounts and obligations outstanding or payable to
any Lender or Agent (or reasonably expected by any Lender or Agent to become
payable) under this Agreement or any other Loan Document, Borrower will, and
will cause each Subsidiary and each Investee to:
(a) CONDUCT OF BUSINESS, PRESERVATION OF CORPORATE
EXISTENCE, ETC. Conduct its business in the ordinary course, consistent with
its past practice (if any); preserve and maintain its corporate or other legal
existence, rights, franchises and privileges in the jurisdiction of its
incorporation; and qualify and remain qualified in each other jurisdiction
except insofar as all failures to do so in the aggregate do not have, and are
not reasonably expected to have, a Material Adverse Effect.
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(b) PAYMENT OF TAXES. Pay and discharge all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, would
become a Lien upon any of its properties or in the aggregate have, or are
reasonably expected to have, a Material Adverse Effect; PROVIDED that no such
entity will be required to pay any such tax, assessment, charge, levy or claim
which is being contested in good faith and by proper proceedings, so long as
neither such contest nor the existence of such proceedings in the aggregate
have, or are reasonably expected to have, a Material Adverse Effect.
(c) MAINTENANCE OF INSURANCE. Maintain insurance on its
properties and businesses with reputable insurance companies in such amounts, of
such types and covering such casualties, risks and contingencies, as is
ordinarily carried by companies engaged in similar businesses and owning similar
properties in the same general locations, except insofar as all failures to do
so, in the aggregate, have not had, and are not reasonably expected to have, a
Material Adverse Effect.
(d) MAINTENANCE OF PROPERTIES. Maintain and preserve its
properties in good working order and condition, ordinary wear and tear excepted,
except where the failure to do so, in the aggregate, has not had, and are not
reasonably expected to have, a Material Adverse Effect.
(e) RECORDS AND BOOKS OF ACCOUNT. Keep adequate records
and books of account, in which complete entries will be made in accordance with
GAAP or other applicable local accounting principles, consistently applied,
reflecting all of its financial transactions.
(f) VISITATION RIGHTS. At any reasonable time, permit any
20% Lender or any agent or representative of any such Lender (at such 20%
Lender's expense, if no Default or Event of Default then exists), to examine and
make copies of and abstracts from its records and books of account, to visit its
properties, and to discuss its affairs, finances and accounts with its officers,
directors, similar officials and independent accountants (any such Lender's
delivery of an executed copy of this Agreement evidencing Borrower's or the
relevant Subsidiary's or Investee's consent for such discussions).
(g) COMPLIANCE WITH LAWS. Comply with the applicable
requirements of all laws, except as such noncompliance in the aggregate does not
have, and are not reasonably expected to have, a Material Adverse Effect.
(h) RELATED DOCUMENTS. Keep, observe and comply with all
of its covenants and obligations which are set forth in the other
Transaction-Related Documents.
(i) AFTER-ACQUIRED PROPERTY. In the case of Borrower, as
promptly as possible, but in any event within ten Business Days, after an
acquisition by Borrower of any property as to which the security interest
granted pursuant to the Security Agreement or the Pledge Agreement has not
theretofore been perfected, deliver to the Agent pursuant to the Security
Agreement or the Pledge Agreement such documents and other items as are
reasonably
23
necessary or desirable to effect such perfection and to make and cause such
security interest to be the first-priority security interest in such property or
to give effect to the Security Agreement or the Pledge Agreement, including
(where appropriate) undated stock or similar powers or other appropriate
instruments of assignment executed in blank.
(j) USE OF PROCEEDS. In the case of Borrower, use all
proceeds of the Loans to (i) make the Borrower Contribution, (ii) make any other
capital contribution or shareholder loan to Newco, or purchase shares of Newco,
pursuant to the Newco Shareholders Agreement, (iii) if Newco becomes a party to
the Mobilink Shareholders Agreement, make capital contributions and shareholder
loans to Mobilink, and purchase shares of Mobilink, pursuant to the Mobilink
Shareholders Agreement, and (iv) pay fees and expenses incurred by it in
connection with the foregoing. In the case of Newco, to make capital
contributions and shareholder loans to Mobilink, and purchase shares of
Mobilink, pursuant to the Mobilink Shareholders Agreement, and to pay expenses
incurred by it in connection with the foregoing.
(k) FINANCIAL STATEMENTS. Use reasonable efforts to
prepare and furnish the financial statements and reports required to be prepared
or furnished under the Newco Shareholders Agreement and the Mobilink
Shareholders Agreement, and at the request of any 20% Lender, use reasonable
efforts to (and to cause other Persons to) request, obtain or prepare, as the
case may be, any other financial information concerning Newco, Mobilink and
their respective Subsidiaries or Investees as they may request or be required to
prepare or furnish pursuant to the Transaction-Related Documents (other than the
Financing Documents).
(l) NEWCO SHARE CERTIFICATE AND NOTES. In the case of
Borrower, not later than September ___, 1997, obtain and deliver to the Agent,
as pledgee, pursuant to the Pledge Agreement, one or more certificates
representing the shares, and any promissory notes or other evidences of
indebtedness, of Newco held by PWH, registered in the name of PWH or in bearer
form, each accompanied by an undated stock power or similar transfer document
duly executed in blank. In the case of Borrower, not later than August __, 1997,
deliver to Newco notice of the pledge of the shares of Newco to be effected
pursuant to the Pledge Agreement and deliver to the Lenders notice from Newco to
the effect that Newco has made such notation in its books and records as is
necessary to put on notice a prospective transferee of such shares the rights of
the Agent and the Lenders with respect thereto.
5.02 NEGATIVE COVENANTS. Borrower covenants that, until the
payment in full of the principal amount of the Notes and all accrued interest
thereon and all fees, other amounts and obligations outstanding or payable to
any Lender or Agent (or reasonably expected by any Lender or Agent to become
payable) under this Agreement or any other Loan Document, it will not and will
not cause or permit any of its Subsidiaries or any Investee to:
(a) INDEBTEDNESS. In the case of Borrower and its
Subsidiaries only (but in no event Mobilink), create, incur, assume, guarantee
or be or remain liable for, contingently or otherwise, or suffer to exist, or
any Indebtedness, except for the following:
(i) Indebtedness under this Agreement and the Notes;
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(ii) Indebtedness representing intercompany loans and
advances solely among one or more of Borrower, its Subsidiaries and the
Investees;
(iii) Indebtedness of Newco representing shareholder loans
made by shareholders of Newco in accordance with the Newco Shareholders
Agreement; and
(iv) Permitted Indebtedness.
(b) NEGATIVE PLEDGE; LIENS. In the case of Borrower and
its Subsidiaries: (i) Create, assume, incur or suffer to be created, assumed,
incurred or to exist any Lien upon any of its respective properties or assets of
any character whether now owned or hereafter acquired, or upon the income or
profits therefrom; (ii) covenant in favor of any party (other than the Agent and
the Lenders) that it will not create, assume, incur or suffer to be created,
assumed, incurred or to exist any Lien upon its property or assets of any
character whether now owned or hereafter acquired, or upon the income or profits
therefrom; (iii) permit or acquiesce in the perfection of any security interest
held by any party (other than the Agent and the Lenders) against any of its
properties or assets; (iv) transfer any of its respective properties or assets
or the income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors; (v) suffer to exist for a period of more than
30 days after the same has been incurred any Indebtedness which if unpaid would
by law or upon bankruptcy or insolvency, or otherwise, be given priority over
its general creditors; or (vi) sell, assign, pledge or otherwise transfer any
accounts, contract rights, general intangibles or chattel paper (as such terms
are defined in the UCC), with or without recourse; PROVIDED that Borrower or any
of its Subsidiaries may create, assume or incur or suffer to be created or
incurred or to exist, and may cause or permit any of its Subsidiaries to create,
assume or incur or suffer to be created or incurred or to exist:
(A) Liens in favor of the Agent and the Lenders
under the Loan Documents;
(B) Tax liens permitted by Section 5.01(b);
(C) Deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, utilities or similar
services, workers' compensation, unemployment insurance, old age pensions or
other insurance or social security obligations;
(D) Interests or title of a lessor under any lease
which is not prohibited by this Agreement;
(E) Easements, rights-of-way, restrictions and other
similar charges and encumbrances not interfering with the ordinary conduct of
the business of Borrower, its Subsidiaries and the Investees or detracting from
the value of their respective assets;
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(F) Mechanics', materialmen's or contractors' liens
or encumbrances or any similar statutory lien or restriction securing payments
and obligations incurred in the ordinary course of business which are not more
than 30 days past due or which are being contested in good faith by appropriate
proceedings, so long as neither such contest nor the existence of such
proceedings in the aggregate have, or are reasonably expected to have, a
Material Adverse Effect;
(G) Attachment or judgment liens securing amounts
not in excess of $25,000 individually or $100,000 in the aggregate which within
30 days after entry have been discharged or execution stayed pending appeal, or
discharged within 30 days after the expiration of such stay;
(H) Liens consisting of bankers' liens, rights of
setoff and similar Liens in favor of depository institutions, in each case
arising in the ordinary course of business; and
(I) Liens consisting of restrictions on transfer and
rights to purchase its property arising under the Newco Shareholders Agreement,
the IWC Group Agreement or the Mobilink Shareholders Agreement.
(c) [RESERVED.]
(d) DISPOSITION. Except as may be required by the
Transaction-Related Documents, transfer or otherwise dispose of all or any
portion of its interest in Newco or any interest therein, or cause or permit
Newco to transfer or otherwise dispose of all or any portion of its interest in
Mobilink or any interest therein.
(e) MERGERS, ETC. Merge or consolidate with, or sell,
assign, lease, transfer or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person or Persons (other than any merger
pursuant to which Borrower is the surviving Person and which does not result in
a Change in Ownership).
(f) DIVIDENDS AND STOCK PURCHASES. Directly or indirectly,
or through any Subsidiary or Investee, declare, make or pay, or incur any
liability to declare, make or pay, any Distribution, other than, in the case of
its Subsidiaries or any Investee, pro rata Distributions made in accordance with
its Organizational Documents, the Newco Shareholders Agreement and the Mobilink
Shareholders Agreement.
(g) AMENDMENTS OF OTHER AGREEMENTS. Amend, supplement,
modify, terminate, or cause or permit to be amended, supplemented, modified or
terminated, any Core Transaction-Related Document or any of its Organizational
Documents, or fail to enforce any provision thereof, except as in the aggregate
does not have, and is not reasonably expected to have, a Material Adverse
Effect.
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(h) INVESTMENTS. In the case of Borrower and its
Subsidiaries, make any Investment, except for those made pursuant to the Newco
Shareholders Agreement and the Mobilink Shareholders Agreement.
(i) RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS. Other than
any Transaction-Related Document, create or otherwise cause or suffer to exist
or become effective any encumbrance or restriction of any kind on the ability of
any of its Subsidiaries or any Investee to (i) pay any Distribution in respect
of any of such Subsidiary's or Investee's capital stock or other Equity
Securities owned by Borrower or any of Borrower's Subsidiaries or any Investee,
(ii) pay any Indebtedness owed to Borrower or any of Borrower's Subsidiaries or
any Investee, (iii) make loans or advances to Borrower or any Subsidiaries or
any Investee or (iv) transfer any of its property or assets to Borrower or any
of Borrower's Subsidiaries or any Investee.
(j) TRANSACTIONS WITH AFFILIATES. Other than any
Transaction Related Document, enter into, amend, supplement or modify any
agreement, contract or transaction which, if it exists or existed on the date of
this Agreement and were not disclosed on the Disclosure Letter, would constitute
a breach of the representations and warranties set forth in Section 3.17.
(k) CHANGE OF BUSINESS. Conduct or enter into any business
other than (i) in the case of Borrower and Newco, the ownership and management
of an Investment in Mobilink, and (ii) in the case of Mobilink, the ownership
and operation of a cellular mobile telephone company in Pakistan presently
operated under the service xxxx "Mobilink/a Motorola Network."
(l) LIMITATION ON CREATION OF SUBSIDIARIES. In the case of
Borrower or any of its Subsidiaries, establish, create or acquire any
Subsidiary; PROVIDED, that Borrower will be permitted to establish or create any
direct or indirect Wholly-Owned Subsidiary, so long as (i) all of the
outstanding Equity Securities of such new Subsidiary are pledged to the Agent,
for the benefit of the Lenders, to secure Loans and the other obligations of
Borrower under this Agreement and the other Loan Documents pursuant to a pledge
agreement in form and substance satisfactory to the Agent, for the benefit of
the Lenders, and the certificates representing such Equity Securities, together
with undated stock or similar powers or other instruments of assignment duly
executed in blank, are delivered to the Agent, for the benefit of the Lenders,
(ii) such new Wholly-Owned Subsidiary executes a guaranty, pledge agreement, and
security agreement, in each case in form and substance satisfactory to the
Agent, for the benefit of the Lenders, and (iii) such new Wholly-Owned
Subsidiary takes all other actions and executes and delivers such other
documents as are reasonably requested by the Agent or Required Lenders in
connection with any of the foregoing. In addition, each such new Subsidiary
will execute and deliver, or cause to be executed and delivered, all other
relevant documentation of the type described in Article IV as Borrower would
have been required to deliver with respect to such new Subsidiary if such new
Subsidiary were in existence on the date of the Closing.
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5.03 REPORTING REQUIREMENTS. Borrower covenants that, until the
payment in full of the principal amount of the Notes and all accrued interest
thereon and all other amounts, fees and obligations outstanding or payable to
any Lender or Agent (or reasonably expected by any Lender or Agent to become
payable) under this Agreement or any other Loan Document, it will furnish to
each 20% Lender:
(a) CERTIFICATE OF COMPLIANCE. As soon as practicable (but
in any event not less than 30 days) after the end of each fiscal quarter of
Borrower, a certificate of Borrower executed on Borrower's behalf by Borrower's
chief financial officer stating that he or she has caused the provisions of this
Agreement to be reviewed and that nothing has come to his or her attention to
lead him or her to believe that any Event of Default or Potential Event of
Default has occurred or exists hereunder or, if such is not the case, specifying
the nature thereof and what action Borrower has taken, is taking and proposes to
take with respect thereto.
(b) ANNUAL BUDGETS; NOTIFICATION OF DEVIATIONS. Prior to
(but not more than 90 days prior to) the end of each fiscal year, an annual
operating budget prepared on a quarterly basis for Borrower and its Subsidiaries
and for each Investee for the succeeding fiscal year (displaying anticipated
statements of income, cash flows and balance sheets) and an annual capital
budget for Borrower and its Subsidiaries or such Investee, as the case may be,
for the succeeding fiscal year (displaying anticipated expenditures for capital
assets), and promptly upon preparation thereof, any other significant budgets
which Borrower, any of its Subsidiaries or any Investee prepares (including any
material revisions of such annual or other budgets).
(c) NOTICES OF DEFAULT. As soon as possible, and in any
event within five Business Days, after Borrower discovers the occurrence of any
Event of Default or Potential Event of Default, a statement of Borrower executed
on Borrower's behalf Borrower's chief financial officer or president setting
forth details of such Event of Default or Potential Event of Default and the
action with respect thereto taken, or proposed to be taken, by Borrower.
(d) NOTICES OF LITIGATION. Promptly after the commencement
thereof, written notice of all actions, suits and proceedings before any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, other than such matters which, in the
aggregate have not had, and are not reasonably expected to have, a Material
Adverse Effect.
(e) NOTICES OF ADVERSE JUDGMENTS. Promptly after the
institution thereof, written notice of all adverse judgments in excess of
$500,000, or which in the aggregate have, or are reasonably expected to have, a
Material Adverse Effect, entered by any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
against Borrower or any of its Subsidiaries or any Investee, which notice will
include the dollar amount of any such adverse judgment as well as any other
expected adverse impact on Borrower and its Subsidiaries or the Investee in
question.
(f) MATERIAL ADVERSE CHANGES. Promptly after the
occurrence thereof, written notice of all events, conditions, acts, facts and
omissions (except general
28
economic conditions) which in the aggregate have had, or are reasonably expected
to have, a Material Adverse Effect.
(g) POTENTIAL PREPAYMENT EVENTS. (A) As early as is
practicable prior to the date thereof, written notice of the anticipated
occurrence of any event described in Section 2.05(b), and (B) on the date of the
occurrence thereof, written notice of the occurrence of any event described in
Section 2.05(b).
(h) INFORMATION CONCERNING SUBSIDIARIES AND INVESTEES. As
and when received, all reports and other information received by Borrower or any
of its Subsidiaries or any Investee with respect to any of its Subsidiaries or
any Investee, including pursuant to the Newco Shareholders Agreement or the
Mobilink Shareholders Agreement.
(i) OTHER INFORMATION. Such other information with respect
to the business, properties, condition or operations, of Borrower, any of its
Subsidiaries or any Investee as any 20% Lender may from time to time reasonably
request.
ARTICLE VI
DEFAULT
6.01 EVENTS OF DEFAULT. An "EVENT OF DEFAULT" means the occurrence
of one or more of the following events:
(a) Borrower defaults in the payment of (i) any principal
amount with respect to any of the Notes when due, whether at maturity, by
acceleration or otherwise, (ii) any interest with respect to any of the Notes
when due or (iii) any other amount required to be paid to any Lender or Agent
under this Agreement or any other Loan Document when due (unless the same is
being contested in good faith), and, in the case of any occurrence described in
clause (iii) above, the default in payment continues uncured for a period of
five or more days;
(b) Borrower, any of its Subsidiaries or any Investee
defaults in (i) the payment of any principal of or any interest, premium or
other amount due and payable with respect to any Indebtedness with an aggregate
principal amount in excess of $500,000 beyond any period of grace provided with
respect thereto or (ii) the performance or observance of any other covenant,
agreement, term or condition contained in any agreement or instrument with
respect to any such Indebtedness, if in either case the effect of such default
is to cause (whether automatically or by acceleration), or permit the holder of
such Indebtedness to cause, after the expiration of any applicable cure period,
such obligation to become due prior to its stated maturity;
(c) The representations and warranties made by Borrower or
IWCH in this Agreement or in any of the other Core Financing Documents,
including or in any schedule, certificate or financial statement furnished to
any Lender or either Agent pursuant to the provisions thereof, considered
without regard to any materiality qualification set forth therein, were as of
the time made or furnished false or misleading in such respects as in the
aggregate
29
have had, or are reasonably expected to have, a Material Adverse Effect as
compared with the state of affairs which would exist if all such representations
and warranties were in all respects true and not misleading;
(d) Any Core Loan Document or any provision thereof ceases
to be in full force and effect or is declared to be null and void by a court of
competent jurisdiction, or Borrower or IWCH or any Person acting by or on behalf
of Borrower or IWCH denies or disaffirms Borrower's or IWCH's obligations under
any Core Loan Document, if the same (in the aggregate with all other occurrences
of the type described above) have had, or are reasonably expected to have, a
Material Adverse Effect, or any material portion of the collateral described in
any Collateral Agreement is attached, seized, subjected to a writ, warrant,
assessment or Lien (other than a Permitted Lien) or levied upon or comes within
the control of any other creditor of any Person other than any Agent;
(e) Borrower defaults the performance of or compliance with
any provision of Section 5.01(i), Section 5.01(j), Section 5.01(l) or
Section 5.02;
(f) Borrower defaults in the performance of or compliance
with any other covenant, condition or provision of this Agreement or any other
Core Loan Document and such default continues for a period of 60 days after the
occurrence thereof;
(g) (A) There is entered against Borrower a final judgment
which, together with all other undischarged final judgments against Borrower,
exceeds $500,000, if, 30 days after the entry thereof, such judgment has not
been fully discharged or execution thereof stayed pending appeal, or if, 30 days
after the expiration of any such stay, such judgment has not been fully
discharged, or (B) there is entered against Borrower, any of its Subsidiaries or
any Investee a final judgment which, together with all other undischarged final
judgments against Borrower, any of its Subsidiaries or any Investee, has had or
are reasonably expected to have a Material Adverse Effect, if, 30 days after the
entry thereof, such judgment has not been fully discharged or execution thereof
stayed pending appeal, or if, 30 days after the expiration of any such stay,
such judgment has not been fully discharged;
(h) Any order, judgment, decree or injunction is entered
against Borrower, any of its Subsidiaries or any Investee requiring the
dissolution or split up of Borrower, any of its Subsidiaries or any Investee or
preventing Borrower, any of its Subsidiaries or any Investee from conducting all
or any material part of its business, and such order, judgment, decree or
injunction remains undischarged or unstayed for more than 30 days;
(i) A proceeding is instituted in a court having
jurisdiction in the premises seeking a decree or order for relief in respect of
Borrower, any of its Subsidiaries or any Investee in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of Borrower, any of its Subsidiaries
or any Investee or for any substantial part of the property of any of them, or
for the winding-up or liquidation of its affairs, and such proceeding remains
undismissed or unstayed and in effect for a period of
30
60 consecutive days or such court enters a decree or order granting the relief
sought in such proceeding;
(j) Borrower, any of its Subsidiaries or any material
Investee commences a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, consents to the entry of an
order for relief in an involuntary case under any such law, or consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of Borrower, any of
its Subsidiaries or any Investee or for any substantial part of the property of
any of them, or makes a general assignment for the benefit of creditors, or
fails generally to pay its debts as they become due, or takes any corporate
action in furtherance of any of the foregoing;
(k) Any Core Equity Document or any provision thereof
ceases to be in full force and effect as to IWCH or IWCH or any Person acting by
or on behalf of IWCH denies or disaffirms IWCH's obligations under any Core
Equity Document, or IWCH defaults in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed pursuant to
any Core Equity Document, in all such cases except where the same, in the
aggregate, have not had, and are not reasonably expected to have, a Material
Adverse Effect of a type described in clause (d) of the definition of that term;
(l) Any "Event of Default" (as that term is defined in the
IWCH Loan Agreement) described in Section 6.01(i) or 6.01(j) of the IWCH Loan
Agreement, or any "Event of Default" (as that term is defined in the Indenture)
described in Section 6.01(6) or 6.01(7) of the Indenture, occurs; or
(m) Any "Event of Default" (as that term is defined in the
IWCH Loan Agreement), other than as described in Section 6.01(i) or 6.01(j) of
the IWCH Loan Agreement, or any "Event of Default" (as that term is defined in
the Indenture), other than as described in Section 6.01(6) or 6.01(7) of the
Indenture, occurs.
6.02 CONSEQUENCES OF EVENT OF DEFAULT.
(a) NON-BANKRUPTCY DEFAULTS. If an Event of Default (other
than any Event of Default described in Section 6.01(i), 6.01(j) or 6.01(l))
occurs and is continuing, then Requisite Lenders may at their option declare the
unpaid principal balance of the Notes, all interest accrued thereon and all
other liabilities and obligations of Borrower under this Agreement and under the
other Loan Documents to be forthwith due and payable, and the same will
thereupon become and be immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived
by Borrower.
(b) BANKRUPTCY. If an Event of Default specified in any of
Sections 6.01(i), 6.01(j) and 6.01(l) occurs, then the unpaid principal balance
of the Notes, all interest accrued thereon and all other liabilities and
obligations of Borrower under this Agreement and under the other Loan Documents
will be immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by Borrower.
31
6.03 RIGHTS OF SETOFF. To the extent permitted by law:
(a) in case an Event of Default occurs and is continuing,
any Lender will have the right, in addition to all other rights and remedies
available to it, without notice to Borrower, to setoff against and to
appropriate and apply to the unpaid balance of the Notes, all accrued interest
thereon and all other obligations of Borrower under this Agreement and under the
Notes and the other Loan Documents, any debt owing to, and any other funds held
in any manner for the account of Borrower by, such Lender, including all funds
in all deposit accounts (general or special) now or hereafter maintained by
Borrower for its own account with such Lender, and such Lender is hereby granted
a security interest in and lien on all such debts (including all such deposit
accounts) for such purpose;
(b) the right described in clause (a) above will exist
whether or not any Lender or Agent has made any demand under this Agreement or
any other Loan Document and whether or not the Notes and such other obligations
are matured or unmatured; and
(c) Borrower hereby confirms each Lender's right of
banker's lien and setoff, as further specified in this Section 6.03, and nothing
in this Agreement or any other Loan Document will be deemed to be a waiver or
prohibition of any Lender's right of banker's lien and setoff.
6.04 OTHER RIGHTS. The rights and remedies of any Lender upon the
occurrence of an Event of Default set forth in Sections 6.02 and 6.03 are
cumulative and in addition to and not in derogation of any other rights each
Lender may have under applicable law, the Financing Documents or other
agreements.
ARTICLE VII
SUCCESSORS AND ASSIGNS; PARTICIPATIONS
7.01 SUCCESSORS AND ASSIGNS IN GENERAL. This Agreement will be
binding upon and, subject to Section 7.02, inure to the benefit of the parties
hereto and their respective successors and assigns, except that Borrower may not
assign or transfer its rights under this Agreement or any interest under this
Agreement or delegate its liabilities, obligations or duties, without the prior
written consent of Requisite Lenders. Any Person which is not already a party
to this Agreement and which becomes the holder of any Note will, by virtue of
becoming such a holder, become a party to this Agreement and as an additional
Lender. The assigning Lender will give Borrower prompt written notice of any
assignment of or participation in the Loans or any Note.
7.02 CONDITIONS. Each Lender may assign all or any portion of its
interest in and rights under this Agreement and the other Financing Documents to
any other Person (who will thereupon become a Lender as provided in Section
7.01), or grant a participating or beneficial interest in this Agreement and the
other Financing Documents to any other Person (a "PARTICIPANT"), subject to the
following conditions:
32
(a) SECURITIES LAWS. Such assignment or participation is
not made under such circumstances as may constitute a violation of the
Securities Act of 1933, as amended, or regulations thereunder, or any other
applicable securities laws.
(b) PARTICIPATING AGENT. In the case of any such
participating or beneficial interest, the granting Lender enters into an agency
relationship with all Participants of such Lender, pursuant to which such
Lender, as agent (in such capacity, the "PARTICIPATING AGENT"), will administer
its interest with respect to the Loans and the Notes on behalf of itself as a
Lender and all of its Participants. All payments to be made by Borrower for the
benefit of such Lender under this Agreement and the other Financing Documents
will be made to such Lender, as the Participating Agent, and all communications
by Borrower to such Lender or any of its Participants will be addressed to or in
the care of the Participating Agent.
7.03 FURTHER ASSURANCE. Borrower will, from time to time at the
request of any Lender, execute and deliver to such Lender or to such party or
parties as such Lender may designate any and all further instruments (including
substitute or replacement Notes) as may in the opinion of such Lender be
reasonably necessary or advisable to give full force and effect to any transfer
contemplated by this Article VII.
ARTICLE VIII
MISCELLANEOUS
8.01 MODIFICATIONS, AMENDMENTS OR WAIVERS. The provisions of this
Agreement, the Notes and the other Core Loan Documents may be modified, amended
or waived, but only by a written instrument signed by Borrower and Requisite
Lenders (and, in the case of any Collateral Agreement or any agreement,
instrument or document delivered thereunder, the Agent in question), except
Sections 6.01(a) and 6.02(a), and all provisions of this Agreement relating to
the rate at which interest accrues on the Loans and the Notes or the times at
which such interest becomes payable or the rate at which the Loans or the Notes
are to be repaid, may be amended only with the prior written consent of Borrower
and all Lenders.
8.02 NO IMPLIED WAIVERS; CUMULATIVE REMEDIES; WRITING REQUIRED. No
delay or failure of any Lender or Agent in exercising any right, power or remedy
under this Agreement or any other Loan Document will affect or operate as a
waiver thereof, nor will any single or partial exercise thereof or any
abandonment or discontinuance of steps to enforce such a right, power or remedy
preclude any further exercise thereof, or of any other right, power or remedy.
The rights and remedies of each Lender and Agent under this Agreement and each
other Loan Document are cumulative and not exclusive of any rights or remedies
which it would otherwise have. Any waiver, permit, consent or approval of any
kind or character on the part of any Lender of any breach or default or any such
waiver of any provision or condition of this Agreement or any other Loan
Document must be in writing and will be effective only to the extent in such
writing specifically set forth.
8.03 REIMBURSEMENT OF EXPENSES; TAXES. Borrower will upon demand
pay or reimburse TDI, Vanguard and Agent for all reasonable out-of-pocket
expenses, including fees
33
and expenses of counsel for TDI, Vanguard or Agent, from time to time
(i) arising in connection with the preparation and execution of this Agreement
and the other Financing Documents (which amount will be limited to $35,000 in
the case of Vanguard, in respect of this Agreement, the other Financing
Documents, the IWCH Loan Agreement and the "Loan Documents" referred to
therein), (ii) relating to any amendments, waivers or consents pursuant to the
provisions hereof or thereof, (iii) arising in connection with any merger
involving Borrower or any of its Subsidiaries or any Investee, any acquisition
by Borrower or any of its Subsidiaries or any Investee, any sale of Borrower or
any of its Subsidiaries or any Investee or any partial or total repayment of the
Loans or Notes, or (iv) arising in connection with the enforcement of the
provisions of this Agreement or any other Financing Document. Borrower will pay
and save each Lender harmless from all liability for any stamp or other similar
taxes which may be payable in connection with this Agreement and the other
Financing Documents or the performance of any transactions contemplated hereby
or thereby (but excluding any franchise tax, income tax, gross receipts tax or
other similar tax).
8.04 HOLIDAYS. Whenever any payment or action to be made or taken
under this Agreement or any other Loan Document is stated to be due or required
to be taken on a day which is not a Business Day, such payment or action will be
made or taken on the next following Business Day, and such extension of time
will be included in computing interest or fees, if any, in connection with such
payment or action.
8.05 NOTICES. All notices and other communications given to or
made upon any party hereto in connection with this Agreement or any other Loan
Document will, except as otherwise expressly provided herein or therein, be in
writing and mailed, telecopied or delivered by hand or by reputable overnight
courier service to the respective parties, as follows:
Borrower: c/o International Wireless Communications, Inc.
000 X. Xx Xxxxxx Xxxx
Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
with a copy (which will not constitute notice) to:
Xxxxxx Xxxxxx, Esq.
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx
Xxxxxxxx & Hachigan, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
To any
Lender: To the address (if any) for such Lender set forth on the
attached EXHIBIT A, with any copy described on such EXHIBIT A
34
or in accordance with any subsequent written direction from the recipient party
to the sending party made in accordance with this Section 8.05. All such
notices and other communications will, except as otherwise expressly provided in
this Agreement or any other Loan Document, be effective upon (a) delivery if
delivered by hand; (b) on the Business Day after deposited with a reputable
overnight courier service, delivery charges prepaid; (c) on the third Business
Day after deposited in the mail, postage prepaid; or (d) in the case of
telecopy, when received.
8.06 SURVIVAL. All representations, warranties, covenants and
agreements of Borrower contained in this Agreement or any other Loan Document or
made in writing in connection herewith or therewith will survive the execution
and delivery of this Agreement, the making of the Loans hereunder and the
issuance of the Notes. The provisions of this Article VIII will survive
repayment of the Loans and the other amounts payable to the Lenders and under
this Agreement and the other Loan Documents and the termination of this
Agreement and the other Loan Documents.
8.07 GOVERNING LAW; WAIVERS AND JURISDICTION.
(a) GOVERNING LAW. This Agreement, the Notes and the other
Loan Documents will in all respects be governed by, and construed and enforced
in accordance with, the laws of the State of New York, without giving effect to
any choice of law or conflict of law rules or provisions (whether of the State
of New York or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of New York, except that the
filing, perfection, effect of perfection and enforcement of security interests
and liens under the Collateral Agreements in other jurisdictions will be
governed by the laws of the applicable jurisdictions in accordance with the UCC
as in effect in the State of New York.
(b) WAIVERS. To the extent permitted by law, each party
hereto hereby waives personal service of any and all process upon it in
connection with this Agreement or any other Loan Document and agrees that all
such service of process may be made as provided in Section 8.05, and service so
made will be deemed to be completed as provided in Section 8.05. In addition,
Borrower and each Lender each hereby waives trial by jury, any objections based
on FORUM NON CONVENIENS and any objections to venue of any action arising out
of, connected with, related to or incidental to the transactions contemplated by
or the relationships established in connection with this Agreement, the Notes
and the other Loan Documents.
(c) EXCLUSIVE JURISDICTION. Except as provided in Section
8.07(d), all disputes among or between any Lender or Agent and Borrower arising
out of, connected with, related to or incidental to the transactions
contemplated by or the relationship established between them in connection with
this Agreement, the Notes or the other Loan Documents, and whether arising in
contract, tort, equity or otherwise, will be resolved only by state or federal
courts located in New York County, New York, and Borrower and each Lender hereby
consents and submits to the jurisdiction of any state or federal court located
within such county and state. The Lenders and Borrower acknowledge, however,
that any appeals from those courts may be required to be heard by a court
located outside of New York County, New York. Borrower and each Lender waives
in all disputes any objection that it may have to the location of the court
35
considering the dispute. Nothing in this Section 8.07 will affect the right of
any Lender or Agent or Borrower to serve legal process in any other manner
permitted by law or affect the right of any Lender or Agent to bring any action
or proceeding against Borrower or its property in the courts of any other
jurisdiction.
(d) OTHER JURISDICTIONS. Borrower and each Lender agrees
that any Lender or Agent or Borrower will have the right to proceed against
Borrower or any Lender in a court in any location to enable any Lender or Agent
or Borrower to enforce a judgment or other court order obtained in any
proceeding brought in accordance with Section 8.07(c) and entered in favor of
such Lender or Agent or Borrower. Borrower and each Lender waives any objection
that it may have to the location of the court in which any Lender or Agent or
Borrower has commenced a proceeding described in this Section 8.07(d).
8.08 HEREIN, ETC. Words such as "herein," "hereunder," "hereof"
and the like will be deemed to refer to this Agreement as a whole and not to any
particular document or Article, Section or other portion of a document.
Section, clause, Exhibit and Schedule references contained in this Agreement are
references to Sections, clauses, Exhibits and Schedules in or attached to this
Agreement, unless otherwise specified. Each defined term used in this Agreement
has a comparable meaning when used in its plural or singular form. Each
gender-specific term used in this Agreement has a comparable meaning whether
used in a masculine, feminine or gender-neutral form. As used in this
Agreement, the terms "knowledge" or "aware" will include the actual knowledge
and awareness of the Person in question, and the knowledge and awareness that
such Person would have obtained after making reasonable inquiry and exercising
reasonable diligence with respect to the matter in question. Whenever the term
"including" is used in this Agreement (whether or not that term is followed by
the phrase "but not limited to" or "without limitation" or words of similar
effect) in connection with a listing of items within a particular
classification, that listing will be interpreted to be illustrative only and
will not be interpreted as a limitation on, or an exclusive listing of, the
items within that classification. Each reference in this Agreement to any law
will be deemed to include such law as it hereafter may be amended, supplemented
or modified from time to time and any successor thereto.
8.09 SEVERABILITY. Whenever possible, each provision of this
Agreement and each other Loan Document will be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this
Agreement or any other Loan Document is held to be prohibited by or invalid
under applicable law in any jurisdiction, such provision will be ineffective
only to the extent of such prohibition or invalidity, without invalidating any
other provision of this Agreement or any other Loan Document.
8.10 HEADINGS. Section and subsection headings in this Agreement
and each other Loan Document are included for convenience of reference only and
will not constitute a part of this Agreement or any other Loan Document for any
other purpose.
8.11 COUNTERPARTS. This Agreement and each other Loan Document may
be executed in multiple counterparts and by any party hereto or thereto on
separate counterparts,
36
each of which, when so executed and delivered, will be an original, but all such
counterparts will together constitute one and the same instrument.
8.12 BROKERS FEES. Borrower will indemnify each Lender and hold it
harmless for any liability, loss or expense (including reasonable attorneys'
fees) arising from any claim for brokerage commissions, finders' fees or similar
compensation in connection with any agreement or arrangement binding upon
Borrower, any of its Subsidiaries or any of their Affiliates.
8.13 INDEMNIFICATION. In consideration of each Lender's execution
and delivery of this Agreement and such Lender's making of the Loans hereunder
or acquisition of a Note, and in addition to all other obligations of Borrower
under this Agreement and the other Loan Documents, Borrower will defend,
protect, indemnify and hold harmless each Lender and its Participants and each
Agent, and all of their respective officers, directors, employees and agents
(including those retained in connection with the transactions contemplated by
this Agreement and the other Loan Documents) (collectively, the "INDEMNITEES")
from and against any and all actions, causes of action, suits, claims, losses,
costs, penalties, fees, liabilities and damages and expenses in connection
therewith (irrespective of whether any such Indemnitee is a party to the action
for which indemnification hereunder is sought), and including reasonable
attorneys' fees and disbursements, but excluding claims and losses arising from
such Indemnitee's breach hereof or thereof or such Indemnitee's gross negligence
or willful misconduct (the "INDEMNIFIED LIABILITIES"), incurred by the
Indemnitees or any of them as a result of, or arising out of, or relating to (i)
any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of the Loans, (ii) the execution, delivery,
performance or enforcement of this Agreement, the Notes or the other Loan
Documents and any instrument, document or agreement executed pursuant hereto by
any of the Indemnitees or (iii) such Lender's status as a lender to Borrower or
such Agent's status as an agent of the Lenders. To the extent that the
foregoing undertaking by Borrower may be unenforceable for any reason, Borrower
will make the maximum contribution to the payment and satisfaction of each of
the Indemnified Liabilities which is permissible under applicable law. To the
extent that the undertaking to indemnify, pay and hold harmless by Borrower
under this Section 8.13 may be unenforceable because it violates any law or
public policy, Borrower will contribute the maximum portion that it is permitted
to pay and satisfy under applicable law or public policy to the payment and
satisfaction of all Indemnified Liabilities incurred by the Indemnities or any
of them.
8.14 PAYMENT SET ASIDE. To the extent that Borrower makes a
payment or payments to any Lender or Agent hereunder or under the Notes or any
other Loan Document or any Lender or Agent enforces its security interests or
rights or exercises its right or setoff hereunder or thereunder, and such
payment or payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside, recovered from, disgorged by or are required to be refunded, repaid
or otherwise restored to Borrower, a trustee, receiver or any other Person under
any law (including any bankruptcy law, state or federal law, common law or
equitable cause of action), then to the extent of any such restoration the
obligation or part thereof originally intended to be satisfied and all
37
Liens created under the Collateral Agreements will be revived and continued in
full force and effect as if such payment had not been made or such enforcement
or setoff had not occurred.
8.15 COMPLETE AGREEMENT. Except as otherwise expressly set forth
herein, this Agreement, the Notes and the other Loan Documents embody the
complete agreement and understanding of the parties hereto and thereto and
supersede and preempt any prior understandings, agreements or representations by
or among the parties, whether written or oral, which may have related to the
subject matter hereof in any way, and such agreements may not be contradicted or
varied by evidence of prior, contemporaneous or subsequent oral discussions or
understandings of the parties. The parties hereto acknowledge and agree there
are no oral understandings or agreements between them with respect to the
subject matter hereof or thereof.
8.16 NO STRICT CONSTRUCTION. The language used in this Agreement
and the other Loan Documents will be deemed to be the language chosen by the
parties to express their mutual intent. In the event an ambiguity or question
of intent or interpretation arises, this Agreement and the other Loan Documents
will be construed as if drafted jointly by the parties, and no presumption or
burden of proof will arise favoring or disfavoring any Person by virtue of the
authorship of any of the provisions of this Agreement or any other Loan
Document.
8.17 REGISTER. Borrower will maintain a register in which it will
record the initial ownership of the Notes and changes in the ownership of Notes
of which it receives notice. For purposes of this Agreement (to the extent
Borrower so maintains such register), the holder of any Note indicated at any
time in such register will be the holder of such Note.
* * * * *
38
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Loan Agreement as of the day and year first
above written.
PAKISTAN WIRELESS HOLDINGS LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Its: Executive Vice President
------------------------------
TORONTO DOMINION INVESTMENTS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Its:
------------------------------
VANGUARD CELLULAR FINANCIAL CORPORATION
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Its:
------------------------------
[OTHER LENDERS]
EXHIBIT A
INITIAL LENDER'S NAME AND ADDRESS LOAN AMOUNT
--------------------------------- -----------
TRANCHE A LENDERS
-----------------
Vanguard Cellular Financial Corporation [$_________]
0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
with a copy (which will not constitute notice) to
-------------------------------------------------
Xxx Xxxx
Xxxxxx & Xxxxxxx
One Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Telecopy: 011 44 171 374 4460
TRANCHE B LENDERS
-----------------
Toronto Dominion Investments, Inc.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Fax No. (000) 000-0000
with copies (which will not constitute notice) to: [$_________]
-------------------------------------------------
Toronto Dominion Investments, Inc.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx
Telecopy: (000) 000-0000
Xxxx Xxxxx
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000 [$__________]
--------------
--------------
Total $22,000,000
--------------
--------------
2
