Exhibit 4.3
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CREDIT FACILITY AGREEMENT
$548,000,000
among
GLOBAL CARD HOLDINGS INC. and AT&T CORP.
as Lenders
and
AT&T LATIN AMERICA CORP.
as Borrower
and
EACH PERSON LISTED ON SCHEDULE A HERETO
as Borrowing Subsidiaries
Dated as of February 27, 2002
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TABLE OF CONTENTS
PAGE
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1. Loans...........................................................................................1
1A. Warrants........................................................................................3
2. Procedures for Advances of Loans................................................................3
3. Repayment; Reduction of Aggregate Commitment....................................................5
4. Notes...........................................................................................8
5. Interest........................................................................................9
6. Use of Proceeds................................................................................11
7. Subordination..................................................................................11
8. Conditions Precedent...........................................................................12
9. Representations and Warranties.................................................................13
10. Covenants......................................................................................15
11. Events of Default..............................................................................20
12. Remedies Upon Default, etc.....................................................................22
13. Taxes..........................................................................................23
14. Increased Costs................................................................................24
15. Indemnities....................................................................................24
16. Change in Market Conditions....................................................................26
17. Applicable Law/Submission to Jurisdiction......................................................26
18. Assignment.....................................................................................27
19. Counterparts...................................................................................27
20. Definitions....................................................................................27
Schedule A List of Borrowing Subsidiaries
Schedule B Existing Loan Agreements
Schedule C Outstanding Loan Amounts
Schedule D Terms of Warrants
Exhibit A Form of Borrowing Notice
Exhibit B Form of Note
Exhibit C Form of Warrant Agreement
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Credit Facility Agreement, dated as of February 27, 2002 ("AGREEMENT"),
among Global Card Holdings, Inc., a Delaware corporation ("GLOBAL"), AT&T Corp.,
a New York corporation ("AT&T," and together with Global and the respective
Affiliates and successors of AT&T and Global, the "LENDERS"), AT&T Latin America
Corp., a Delaware corporation (the "BORROWER" or "ATTL") and each Person listed
on Schedule A hereto (each, a "BORROWING SUBSIDIARY"). Certain capitalized terms
used herein are defined in Section 20.
RECITALS
A. The Borrower has requested the Lenders to make loans available to the
Borrower and the Borrowing Subsidiaries in one or more drawdowns in an aggregate
principal amount not exceeding $548,000,000 (such amount, as reduced hereunder
from time to time, the "AGGREGATE COMMITMENT");
B. The parties desire to amend and restate in their entirety, and to
combine into a single agreement, the existing agreements identified on Schedule
B hereto (the "EXISTING LOAN AGREEMENTS");
C. The Lenders are willing to make (or continue) loans to the Borrower
and/or one or more of the Borrowing Subsidiaries under the terms and subject to
the conditions set forth in this Agreement.
In consideration of the mutual promises and covenants set forth herein,
the parties agree that the Existing Loan Agreements are hereby amended and
restated in their entirety as follows:
1. LOANS.
(a) Subject to the terms and conditions of this Agreement, the Lenders
agree to make one or more loans hereunder (each, a "TRANCHE A LOAN")
to the Borrower and/or the Borrowing Subsidiaries from time to time
during the period from the Effective Date to the Termination Date,
as requested by the Borrower in accordance with Section 2, PROVIDED
that, subject to Section 3(b), the aggregate principal amount of all
outstanding Tranche A Loans shall not exceed $100,000,000, plus the
amount of corresponding Interest Loans, at any time.
(b) Subject to the terms and conditions of this Agreement, the Lenders
agree to make one or more loans hereunder (each, a "TRANCHE B LOAN")
to the Borrower and/or the Borrowing Subsidiaries from time to time
during the period from the Effective Date to the Termination Date,
as requested by
the Borrower in accordance with Section 2, PROVIDED that, subject to
Section 3(b), the aggregate principal amount of all outstanding
Tranche B Loans shall not exceed $200,000,000, plus the amount of
corresponding Interest Loans, at any time.
(c) Subject to the terms and conditions of this Agreement, the Lenders
agree to make one or more loans hereunder (each, a "TRANCHE C LOAN")
to the Borrower and/or the Borrowing Subsidiaries from time to time
during the period from the Effective Date to the Termination Date,
as requested by the Borrower in accordance with Section 2, PROVIDED
that, subject to Section 3(b), the aggregate principal amount of all
outstanding Tranche C Loans shall not exceed $98,000,000, plus the
amount of corresponding Interest Loans, at any time.
(d) Subject to the terms and conditions of this Agreement, the Lenders
agree to make one or more loans hereunder (each, a "TRANCHE D LOAN")
to the Borrower and/or the Borrowing Subsidiaries from time to time
during the period from the Effective Date to the Termination Date,
as requested by the Borrower in accordance with Section 2, PROVIDED
that, (I) subject to Section 3(b), the aggregate principal amount of
all outstanding Tranche D Loans shall not exceed $150,000,000, plus
the amount of corresponding Interest Loans, at any time, and (II)
Tranche D Loans shall only be made available if the Brazilian
Debenture is not executed or such funding is otherwise required or
permitted to be made in accordance with the terms of the
Supplemental Agreement to be entered into among AT&T, ATTL and ABN
AMRO Trustees Limited, as collateral and intercreditor agent in
connection with the Vendor Financing Facility (the "SUPPLEMENTAL
AGREEMENT"). The amount of Interest Loans outstanding from time to
time corresponding to Tranche D Loans shall not be taken into
account for purposes of determining if a Tranche D Loan is required
to be made under the Supplemental Agreement.
(e) Until the date on which (I) principal, premium (if any), accrued
interest and all other amounts then due and owing on the Vendor
Financing Facility have been paid in full at final maturity or (II)
in the case of Loans other than Tranche D Loans, the Vendor
Financing Facility otherwise permits cash payment of interest
hereunder, the Borrowing Parties shall not make any cash interest
payments on any Loans, and, on the applicable interest payment dates
prior to such date, the relevant Borrowing Party shall borrow and
the relevant Lenders shall be deemed to have loaned to such
Borrowing Party an interest loan (an "INTEREST LOAN") in a principal
amount equal to the accrued interest due (and not paid in cash) from
such
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Borrowing Party on such date. Each Interest Loan shall be of the
same type of Loan as the principal amount to which such interest
relates, and the amount of such Interest Loan shall be recorded
appropriately in the records of the Lenders. Each Interest Loan
shall be deemed a "Loan" of the type hereunder for all purposes
(including for purposes of this paragraph), except for the purposes
of the proviso to each of paragraphs (a) through (d) of Section 1
and for purposes of Section 3(b)(i).
(f) The Borrowing Subsidiaries listed on Schedule A may be changed from
time to time as agreed by the Lenders and Borrower, PROVIDED that
any Person added to such list becomes a party to this Agreement.
(g) The parties acknowledge that, prior to any advances of Loans in
accordance with Section 2 hereof, the principal amount of, and
capitalized and accrued interest on, all outstanding Tranche A
Loans, Tranche B Loans, Tranche C Loans and Tranche D Loans is as
set forth in Schedule C hereto (which schedule shall be updated as
of the Effective Date). As of the Effective Date, all such
outstanding amounts set forth in Schedule C hereto, as so updated,
(plus additional amounts outstanding or accrued as of such date)
shall be deemed to constitute Tranche A Loans, Tranche B Loans,
Tranche C Loans and Tranche D Loans, respectively, hereunder without
the necessity of any further action, and this Agreement shall
replace and supersede the Existing Loan Agreements, which shall
terminate.
1A. WARRANTS.
As of the date of the advance of each Loan, the Borrower will issue to the
Lenders warrants ("WARRANTS") to purchase shares of Class A common stock
of the Borrower in accordance with the economic terms set forth in
Schedule D. The Warrants shall be issued pursuant to a Warrant Agreement
substantially in the form of Exhibit C hereto.
2. PROCEDURES FOR ADVANCES OF LOANS.
(a) REQUESTS FOR BORROWING. Following the Effective Date, the Borrower
shall give the Lenders a notice of each Loan (other than any
Interest Loan) substantially in the form of Exhibit A (a "BORROWING
NOTICE"), duly executed by the Chief Executive Officer or Chief
Financial Officer of ATTL, not later than the fifth Business Day
prior to the borrowing date of such Loan of its intention to borrow,
specifying (I) the principal amount of such Loan in Dollars, which
shall be in an aggregate amount of
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$2,000,000 or an integral multiple of $1,000,000 in excess thereof
(not to exceed, together with any outstanding Loans other than
Interest Loans, the Aggregate Commitment), (II) the borrowing date
of such Loan, which shall be a Business Day, (III) the name of any
Borrowing Subsidiary proposed to be a borrower and (IV) the bank
account or accounts of the Borrower (or Borrowing Subsidiary) to
which the Loan is to be disbursed, and certifying, as of the date of
the Borrowing Notice and as of the borrowing date, that (W) the
Borrower and the Borrowing Subsidiaries have performed and complied
with all the respective terms and conditions of this Agreement
applicable to them, (X) the representations and warranties contained
in Section 9 are and will be true and correct; (Y) there exists and
will exist no condition or event which constitutes or which, after
notice or passage of time or both, would constitute an Event of
Default, and (Z) the amount of the Loan specified in the Borrowing
Notice is consistent with the most recently delivered Budget. Any
Borrowing Notice received after 12:00 noon (New York time) shall be
deemed received on the next Business Day. If the Borrower requests
in a Borrowing Notice pursuant to this Section that all or a portion
of an amount of the Loan specified therein be made available to one
or more Borrowing Subsidiaries, Borrower must deliver the Borrowing
Notice to the Lenders not later than (I) 20 Business Days prior to
the requested borrowing date if any relevant Borrowing Subsidiary is
domiciled in Colombia or Brazil; or (II) 10 Business Days prior to
the requested borrowing date if any relevant Borrowing Subsidiary is
domiciled in Peru, Argentina or Chile.
(b) DISBURSEMENT OF LOANS. Subject to the terms and conditions of this
Agreement, not later than 5:00 p.m. on the borrowing date set forth
in a Borrowing Notice with respect to a Loan complying with
paragraph (a) of this Section, the Lenders shall make available to
the Borrower the amount of such Loan in U.S. Dollars specified in
such Borrowing Notice, in immediately available funds payable to the
account or accounts specified in such Borrowing Notice, PROVIDED
that at the request of Borrower, the Lenders may, in their sole
discretion, make available to a Borrowing Subsidiary all or a
portion of an amount of the Loan specified in the Borrowing Notice
on a borrowing date to be agreed between the Lenders and the
Borrower, which date, except as otherwise agreed by the Lenders,
shall be not earlier than (I) 20 Business Days after receipt of the
Borrowing Notice if the relevant Borrowing Subsidiary is domiciled
in Colombia or Brazil or (II) 10 Business Days after receipt of the
Borrowing
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Notice if the relevant Borrowing Subsidiary is domiciled in Peru,
Argentina or Chile.
(c) Notwithstanding clause (a) above, and subject to the maximum
principal amount set forth in Section 1(d), the Lenders will extend
Tranche D Loans to the Borrower (or, at the Lenders' option, to a
Subsidiary of the Borrower if permitted under the Vendor Financing
Facility) if and to the extent the Lenders are required to do so
pursuant to the Supplemental Agreement. The Borrower agrees to
provide promptly to the Lenders a copy of any notice received by the
Borrower or its affiliates from any lender or agent under the Vendor
Financing Facility with respect to such funding requirement pursuant
to the Supplemental Agreement, and to provide promptly to the
Lenders a Borrowing Notice for the corresponding Tranche D Loan.
3. REPAYMENT; REDUCTION OF AGGREGATE COMMITMENT.
(a) FINAL MATURITY. The Borrower shall repay, or cause the relevant
Borrowing Subsidiaries to repay, as the case may be (including
without limitation by providing funds to such Borrowing Subsidiary
for such payment), all Loans (or such principal amount as shall then
be outstanding) on October 1, 2008.
(b) MANDATORY PREPAYMENT.
(i) If at any time the aggregate amount of outstanding Loans
(other than Interest Loans) exceeds the Aggregate Commitment
then in effect, the Borrower shall prepay, or cause the
relevant Borrowing Subsidiaries to prepay, as the case may be
(including without limitation by providing funds to such
Borrowing Subsidiary for such payment) an amount equal to the
excess of the aggregate amount of outstanding Loans (other
than Interest Loans) over such Aggregate Commitment, such
prepayment to be made, together with accrued interest on the
amount prepaid through the date of prepayment, not more than
three Business Days following any date on which the aggregate
amount of outstanding Loans (other than Interest Loans)
exceeds the Aggregate Commitment.
(ii) The Borrower shall prepay, or cause the relevant Borrowing
Subsidiary to prepay, as the case may be (including, without
limitation, by providing funds to such Borrowing Subsidiary
for such payment):
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(I) until the Tranche D Loan has been repaid in full, an
amount equal to the lesser of (A) one hundred percent
(100%) of the net cash proceeds from any Offering (net
of all costs of such Offering including, without
limitation, underwriting fees (if any)) and (B) the
remaining amount outstanding under the Tranche D Loan,
PROVIDED that, (i) with respect to any "Equity Capital
Market Transaction" that is not a Refinancing Private
Equity Transaction, the Borrower shall not be required
to prepay any amount in excess of the amount derived
from the "Capital Markets Percentage" applicable
thereto, and (ii) no prepayment shall be required in the
case of an Offering constituting an "Agency Capital
Market Transaction" (the foregoing terms in quotation
marks having the respective meanings assigned to them in
the Common Agreement); and
(II) to the extent not applied pursuant to clause (I) above,
an amount equal to the Mandatory Prepayment Amount.
Any prepayment required to be made pursuant to this Section 3(b)(ii) shall
be made, together with accrued interest on the amount prepaid through the
date of prepayment, not more than three Business Days following the
closing of the Offering generating such proceeds, and shall be applied (A)
in the case of a prepayment pursuant to clause (I) above, to repayment of
the Tranche D Loan and (B) in the case of a prepayment pursuant to clause
(II) above, to the repayment of the Tranche A Loan, the Tranche B Loan and
the Tranche C Loan (in that order of priority).
For the purposes of this Section 3(b)(ii), the following terms have the
following meanings:
"MANDATORY PREPAYMENT AMOUNT", with respect to any Offering,
means the product of (A) the net cash proceeds of such Offering (net
of all costs of such Offering including, without limitation,
underwriting fees (if any)) and (B) the Mandatory Prepayment
Percentage (expressed as a decimal).
"MANDATORY PREPAYMENT PERCENTAGE" means (A) if the Vendor
Financing Facility has been terminated, twenty-five percent (25%),
or (B) if the Vendor Financing Facility is outstanding, either (X)
twenty-five percent (25%), if (I) the relevant Offering is
consummated after the third anniversary of the Effective Date and
the Borrower's Leverage Ratio for
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the immediately preceding four full fiscal-quarter period is less
than or equal to 5:1 or (ii) AT&T and the lenders under the Vendor
Financing Facility shall have negotiated a prepayment provision,
allowing AT&T to be prepaid without the criteria set forth in the
immediately preceding clause (i) having been met (but the amount of
such negotiated prepayment, together with the amount of any
prepayment required to be made to the lenders under the Vendor
Financing Facility following such negotiation, shall in no event be
greater than the aggregate amount required to be prepaid by ATTL and
its Subsidiaries (1) to the Lenders under this clause 3(b)(ii), plus
(2) under the Common Agreement), or (Y) zero percent (0%), if clause
(x) does not apply, provided that, in any case, with respect to an
"Agency Capital Market Transaction" (as defined in the Common
Agreement) the Mandatory Prepayment Percentage shall be 0%.
"OFFERING" means any issuance or incurrence by the Borrower,
any Borrowing Subsidiary or any Subsidiary of the Borrower or any
Borrowing Subsidiary from time to time, whether in a public or
private placement or offering, of (A) Indebtedness, other than
Senior Obligations and Basket Indebtedness, or (B) equity securities
or similar interests, other than in connection with the exercise of
(i) stock options or other equity-based incentive instruments by
employees pursuant to an authorized plan of such Borrower, Borrowing
Subsidiary or other Subsidiary, or (ii) any Warrants.
(c) OPTIONAL PREPAYMENT. The Borrower (or any Borrowing Subsidiary) may
prepay Loans in whole or in part without penalty or premium, but
together with accrued and unpaid interest on the amount prepaid
through the date of prepayment, PROVIDED that the Borrower shall
give the Lenders notice of any such prepayment at least three
Business Days in advance.
(d) PREPAYMENT ON ACCOUNT OF ILLEGALITY. Notwithstanding any other
provision herein, if the adoption of or any change in any
Requirement of Law applicable to the Lenders, Borrower or any
Borrowing Subsidiary or in the interpretation or application thereof
occurring after the date of this Agreement shall make it unlawful
for any Lender to make or maintain any Loan, (I) the Lenders shall
promptly give written notice of such circumstances to the Borrower
(which notice shall be withdrawn whenever such circumstances no
longer exist), and (II) the Borrower shall repay (or cause its
applicable Borrowing Subsidiary to repay) the amount of such Loan,
together with any interest accrued thereon, within three Business
Days following receipt of such notice from the Lenders.
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(e) REPAYMENT IN EVENT OF DEFAULT. If an Event of Default shall have
occurred and be continuing, the Loan may be declared payable
immediately, or will become repayable immediately, in accordance
with Sections 11 and 12.
(f) PAYMENT IN DOLLARS. Any payment under this Agreement or the Notes
shall be in Dollars.
(g) NO REBORROWING. Loans may not be reborrowed once repaid, except that
Loans under Tranche D repaid out of proceeds of the Brazilian
Debenture (or any "Brazilian Debenture Refinancing Indebtedness" as
defined in the Common Agreement) may be reborrowed, to the extent of
any such repayment and to the extent required by the Supplemental
Agreement, and Tranche D Loans may be reborrowed to the extent
required by the Supplemental Agreement.
(h) CONVERSION OF LOANS. With the mutual agreement of ATTL and the
Lenders, all or any portion of the outstanding principal amount and
accrued and unpaid interest of any Loan shall be converted into, or
exchanged for, fully paid and nonassessable shares of B Voting
Preferred Stock at the Conversion Rate (determined as hereafter
provided). The shares of B Voting Preferred Stock issued upon any
such conversion or exchange shall afford such rights as are set
forth in, and, other than with respect to voting rights, shall
otherwise be governed by, the Certificate of Designation applicable
to the Series B Preferred Stock of ATTL. As promptly as practicable
on or after the date of any such conversion or exchange, the
Borrower shall issue and deliver to the Lenders a certificate or
certificates for the number of shares of B Voting Preferred Stock
issuable upon conversion or exchange, rounded up (if necessary so
that a fractional share need not be issued) to the nearest whole
share.
The rate at which shares of B Voting Preferred Stock shall be
delivered upon conversion or exchange (the "CONVERSION RATE") shall
be the number of shares of B Voting Preferred Stock having a
liquidation preference equal to the amount of principal and accrued
and unpaid interest of the Loans being converted or exchanged.
4. NOTES.
The obligation of the Borrower and each Borrowing Subsidiary to pay the
principal of and interest on all of its Loans to any Lender shall be
evidenced by a single note payable to the Lenders (a "NOTE"), which shall
(I) be dated as of
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the Effective Date, and thereafter updated as necessary to account for
additional Loans, Interest Loans and prepayments hereunder, (II) be in an
amount equal to the Aggregate Commitment in effect at the time such Note
is issued, (III) bear interest as provided in Section 5, (iv) be payable
in Dollars to the order of the applicable Lender, (V) be duly executed by
a duly authorized officer of the Borrower or the relevant Borrowing
Subsidiary, (VI) be substantially in the form of Exhibit B with blanks
completed in conformity herewith and therewith, and (vii) be pledged to
the Collateral and Intercreditor Agent under the Common Agreement to the
extent required by the last paragraph of Section 6.01 of the Common
Agreement. Each Borrowing Party's Note shall be valid and enforceable as
to its principal amount at any time only to the extent of the Loans
advanced by the Lenders to such Borrowing Party and then outstanding, and,
as to interest, only to the extent of the interest accrued and unpaid in
respect of such Loans. The Borrower shall deliver, or cause to be
delivered, to the Lenders a duly executed Note in respect of each
Borrowing Party that borrows from the Lenders hereunder not later than the
date on which such Borrowing Party's first Loan is disbursed or deemed
made hereunder.
5. INTEREST.
(a) INTEREST RATE. Subject to the provisions of this Section 5,
(i) the outstanding principal amount of each Tranche A Loan shall
bear interest at a rate per annum equal to the LIBOR Rate plus
the Margin as set forth below up to and including the date
that is on or after August 28, 2002 and on which an interest
payment is due, and 14% thereafter;
(ii) the outstanding principal amount of each Tranche B Loan shall
bear interest at a rate per annum equal to 15%;
(iii) the outstanding principal amount of each Tranche C Loan shall
bear interest at a rate per annum equal to 15%;
(iv) the outstanding principal amount of each Tranche D Loan shall
bear interest at a rate per annum equal to 15.3%;
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(v) The interest rate for each Loan shall be adjusted as set forth
in Sections 5(a)(vi)(A) and (B) below.
(A) The interest rate for each Loan shall decrease by 1%,
commencing as of October 1, 2003 (in the case of clause
(I) below) or October 1, 2005 (in the case of clause
(II) below), if:
(I) the Consolidated EBITDA of the Borrower, for the
two consecutive full fiscal quarters immediately
preceding October 1, 2003, is greater than
$27,500,000 or
(II) the Borrower has, as of the fiscal quarter ended
immediately preceding October 1, 2005, a Leverage
Ratio of less than 5:1.
(B) The interest rate for each Loan shall be increased by
1%, commencing as of October 1, 2003 (in the case of
clause (I) below) or October 1, 2005 (in the case of
clause (II) below), if:
(I) the Consolidated EBITDA of the Borrower, for the
two consecutive full fiscal quarters immediately
preceding October 1, 2003, is not greater than
$7,500,000 or
(II) the Borrower has, as of the fiscal quarter ended
immediately preceding October 1, 2005, a Leverage
Ratio of more than 7:1.
(C) Each interest rate adjustment, if any, to be made in
accordance with this Section shall become final and be
reflected retroactively in the books and records of the
Lenders and ATTL as and when the relevant quarterly financial
data described above has been reviewed by the independent
accounting firm charged with reviewing or auditing ATTL's
periodic financial statements.
(b) INTEREST PERIODS. The Interest Period (the "INTEREST PERIOD") for
each Loan shall be (I) initially, the period commencing on and
including the next succeeding day after the date of disbursement (in
the case of advances of Tranche A Loans, Tranche B Loans, Tranche C
Loans and Tranche D Loans) or the date on which each Interest Loan
is deemed to have been made (in the case of Interest Loans), and
ending on and including the first day of the next succeeding June or
December, and (II) thereafter, each six-month period commencing on
and including the next succeeding day after
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the last day of the preceding Interest Period and ending on and
including the first day of the next succeeding June or December,
PROVIDED that (X) any Interest Period that would otherwise end on a
day that is not a Business Day shall end on the next succeeding
Business Day, (Y) any Interest Period that would otherwise end after
the Termination Date shall end on the Termination Date, and (Z) the
loan amounts specified to be outstanding pursuant to Section 1(g)
shall be deemed for the purpose of Interest Period calculations to
have been advanced on the date hereof.
(c) DEFAULT RATE. Upon the occurrence and during the continuance of an
Event of Default, all Loans shall bear interest at a rate per annum
that is 2% in excess of the rate then otherwise applicable.
(d) INTEREST PAYMENT AND COMPUTATION. Interest on each Loan shall be
payable on the last day of each Interest Period applicable thereto.
Interest shall be computed on the basis of a 360-day year or 30-day
months and assessed for the actual number of days elapsed.
(e) LIBOR RATE; MARGIN. The "LIBOR RATE" shall be the per annum rate of
interest determined on the basis of the London Inter-Bank Offered
Rate for deposits in Dollars in minimum amounts of $5,000,000 for a
three-month period appearing on Bloomberg (function: BBAM) as of two
Business Days prior to the date of disbursement of the applicable
Loan. The "MARGIN" shall be 3.75% per annum.
6. USE OF PROCEEDS.
The Borrower and its Subsidiaries shall use the proceeds of the Loans (I)
to finance Capital Expenditures not covered by the Vendor Financing
Facility, operating losses and working capital requirements; and (II) to
pay cash interest.
7. SUBORDINATION.
(a) AGREEMENT TO SUBORDINATE. Each Loan is subordinated in right of
payment and otherwise to the Senior Obligations, to the extent and
in the manner provided in the Subordination Agreement to be entered
into among Latin American Equipment Finance B.V., ATTL, each
Subsidiary of ATTL listed on Schedule II thereto and ABN AMRO
Trustees Limited, as collateral and intercreditor agent (the
"SUBORDINATION AGREEMENT"). Each Borrowing Subsidiary and Lender
shall become a party to the Subordination Agreement as provided
therein.
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(b) NOTWITHSTANDING any other provision of this Agreement, if (i) any
provision of THIS Agreement would require that any payment (whether
of principal, interest or otherwise) be made hereunder or shall
become due hereunder (or would permit any Lender to DECLARE any
payment to become due hereunder) and (ii) at the time such payment
would not be permitted by the Subordination Agreement, then the
failure to make such payment shall not consitute a default under
this Agreement or an Event of Default under Section 11(a) or 11(b)
hereof. This paragraph shall not be construed to (x) prohibit any
Lender from submitting any claim in any bankruptcy or insolvency
proceeding or (y) prohibit payments that are described in and
applied as provided in Section 2.2 of the Subordination Agreement.
8. CONDITIONS PRECEDENT.
The agreement of each Lender to enter into this Agreement and to make
available the Loans is subject to the satisfaction or waiver of the
following conditions precedent:
(i) BRAZILIAN DEBENTURE NOT EXECUTED. With respect to the obligation to
make any Loan under Tranche D, the Brazilian Debenture shall not
have been executed, or the funding of such Tranche D Loan is
otherwise required to be made in accordance with the terms of the
Supplemental Agreement;
(ii) WARRANT AGREEMENT; ISSUANCE OF WARRANTS. The Warrant Agreement shall
have been executed and delivered by the Borrower and the other
parties thereto, substantially in the form attached hereto as
Exhibit C (but including registration rights provisions covering the
Warrant Shares, in the form agreed by the parties) and the Borrower
shall have executed and delivered to AT&T (or to its affiliates, as
designated by AT&T prior to the Effective Date) one or more
certificates representing the Warrants;
(iii) The Effective Date shall have occurred, and there shall not have
been any material amendment, waiver or change to the Common
Agreement not reasonably acceptable to the Lenders between December
21, 2001 and the Effective Date;
(iv) The Borrower and each applicable Borrowing Subsidiary (if any) shall
have executed and delivered to the Lenders the Note; and
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(v) With respect to each Loan requested by the Borrower to be made, the
Lenders shall have received a duly executed Borrowing Certificate in
accordance with Section 2(a).
9. REPRESENTATIONS AND WARRANTIES.
The Borrower, with respect to itself and its Subsidiaries, and each
Borrowing Subsidiary, with respect to itself and its Subsidiaries,
represents and warrants to the Lenders as follows:
(a) DUE ORGANIZATION, VALID EXISTENCE, GOOD STANDING, DUE AUTHORIZATION,
ENFORCEABILITY. The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of Delaware and
has the corporate power and authority to execute and deliver this
Agreement and perform its obligations hereunder. Each Subsidiary is
a corporation, limited liability company or other business entity
duly organized, validly existing and, if applicable, in good
standing under the laws of the jurisdiction in which it is
organized. The execution and delivery of this Agreement and the
performance of the Borrower's and the Borrowing Subsidiaries'
obligations hereunder have been duly authorized by all necessary
action on the part of the Borrower and, on or prior to the Effective
Date, will have been duly authorized by all necessary action on the
part of such Borrowing Subsidiary, as the case may be. This
Agreement has been duly executed and delivered by the Borrower and,
as of the Effective Date, each Borrowing Subsidiary, and constitutes
(or, in the case of each Borrowing Subsidiary, will constiture as of
the Effective Date) the legal, valid and binding obligation of the
Borrower and each Borrowing Subsidiary, as the case may be.
(b) NO VIOLATION, CONFLICT, DEFAULT, LIENS, CONSENTS, APPROVALS. The
execution and delivery of this Agreement by the Borrower and each
Borrowing Subsidiary and the performance by the Borrower and each
Borrowing Subsidiary of its obligations hereunder will not result in
(I) any conflict with the organizational documents of the Borrower
or any Subsidiary, (II) any breach or violation of or default under
any law, statute, regulation, judgment, order, decree, license,
permit or other governmental authorization or any mortgage, lease,
agreement, deed of trust, indenture or any other instrument to which
the Borrower or any Subsidiary of the Borrower is a party or by
which any of them or their respective properties or assets are
bound, or (III) except as provided herein, the creation or
imposition of any Liens, except for such breaches, violations or
defaults and such Liens which would not, individually or in the
aggregate,
13
reasonably be expected to have a material adverse effect (a
"MATERIAL ADVERSE EFFECT") on the ability of Borrower and the
Borrowing Subsidiaries to perform their obligations under this
Agreement or with respect to any Loan. No consent, approval or
authorization of or filing with any third party or any governmental
authority is required on the part of the Borrower or any of the
Subsidiaries of the Borrower in connection with the execution and
delivery of this Agreement or the consummation of the transactions
contemplated hereby or the performance of any obligations of
Borrower or any of the Borrowing Subsidiaries hereunder.
(c) NO MATERIAL ADVERSE CHANGE. Since March 31, 2000, there has been no
change, occurrence or development resulting in a Material Adverse
Effect.
(d) NO LITIGATION. (I) There is no pending or, to the best knowledge of
the Borrower and the Borrowing Subsidiaries, threatened action or
suit or judicial, arbitral, rule-making or other administrative or
other proceeding before any court of governmental agency, authority
or body or any arbitrator involving the Borrower or any of the
Subsidiaries that would reasonably be expected to have a Material
Adverse Effect, and (II) there is no pending or, to the best
knowledge of the Borrower and the Borrowing Subsidiaries, threatened
action or suit or judicial, arbitral, rule-making or other
administrative or other proceeding which questions the validity of
this Agreement or any action taken or to be taken pursuant hereto.
(e) FEDERAL REGULATIONS. No part of the proceeds of any Loan will be
used for "buying" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U
of the Federal Reserve Board, or for any purpose which violates the
provisions of the Regulations of the Federal Reserve Board,
including, without limitation, Regulation T, Regulation U or
Regulation X of the Federal Reserve Board.
(f) OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and its
Subsidiaries has good and valid title to, or a valid leasehold
interest in, all its material real property, and good title to, or a
valid leasehold interest in, all its other material property, and
none of such property is subject to any Liens, except Permitted
Liens.
(g) INVESTMENT COMPANY ACT. Neither the Borrower nor any of the
Subsidiaries is an "investment company" or a "company controlled by
an investment company" within the meaning of the United States
Investment Company Act of 1940, as amended.
14
(h) PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor any of
the Subsidiaries is a "holding company" or an "affiliate of a
holding company" within the meaning of the United States Public
Utility Holding Company Act of 1935, as amended.
(i) FOREIGN ASSETS CONTROL REGULATIONS, ETC. Neither the making of any
Loan nor the use of the proceeds thereof as contemplated by this
Agreement will violate any requirement or prohibition imposed by the
United States government under authority of the International
Emergency Economic Powers Act (50 U.S.C. ss 1701, ET SEQ.), the
Trading with the Enemy Act (50 U.S.C. App. 5(b)), or any
proclamation, order, regulation or license issued pursuant thereto.
(j) TAXES. The Borrower and each of the Subsidiaries have duly and
timely filed or caused to be duly and timely filed all tax returns
which are required to be filed and have duly and timely paid all
taxes shown to be due and payable on such returns or on any
assessments made against it or any of its property by a government
authority or otherwise payable by it (other than any amount the
validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which adequate reserves
have been established in the books of the Borrower or the
Subsidiaries, as the case may be) except to the extent that failure
to comply with this paragraph would not be reasonably expected to
have a Material Adverse Effect.
10. COVENANTS.
(a) ANNUAL BUDGET. Prior to the beginning of each fiscal year of the
Borrower, the Borrower shall deliver to the Lenders an annual budget
with respect to the Group (the "BUDGET"), approved by the Board of
Directors of Borrower, that sets forth in reasonable detail (I) the
financing needs of the Group and expected financing sources; and
(II) the amount of proposed Capital Expenditures for each quarterin
such year. Borrower shall promptly provide to the Lenders an updated
Budget, approved by the Board of Directors of Borrower, upon any
material change to the Budget most recently delivered to the
Lenders.
(b) USE OF PROCEEDS/MARGIN REGULATIONS. The Borrower shall, and shall
cause its Subsidiaries to, use the proceeds of Loans in accordance
with Section 6. The Borrower shall not, and shall cause its
Subsidiaries not to, use any part of the proceeds of any Loan for
"buying" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms
15
under Regulation U of the Federal Reserve Board, or for any purpose
which violates the provisions of the Regulations of the Federal
Reserve Board, including, without limitation, Regulation T,
Regulation U or Regulation X of the Federal Reserve Board. If
requested by the Lender, the Borrower and each Subsidiary will
furnish to the Lenders a statement to that effect in conformity with
the requirements of FR Form U-1 or such other similar form referred
to in Regulation T, Regulation U or Regulation X of the Federal
Reserve Board, as the case may be,
(c) NOTICE OF EVENT OF DEFAULT. The Borrower shall deliver to the
Lenders promptly, and in any event within five Business Days after a
responsible officer of the Borrower or any Subsidiaries becoming
aware of the existence of any Event of Default, a written notice
specifying the nature and period of existence thereof and what
action the Borrower is taking or proposes to take with respect
thereto;
(d) REQUESTED INFORMATION. The Borrower shall deliver to the Lenders as
promptly as practicable such data and information (including copies
of periodic financial statements) relating to the business,
operations, affairs, financial condition, assets or properties of
the Borrower or any of the Subsidiaries or relating to the ability
of the Borrower or any of its Subsidiaries to perform their
respective obligations hereunder, or with respect to any Loan, as
from time to time may be reasonably requested by the Lenders.
(e) COMPLIANCE WITH LAWS. The Borrower shall, and shall cause its
Subsidiaries at all times to:
(i) comply in all material respects with all Requirements of Law
applicable to Borrower or its Subsidiaries, as the case may
be; and
(ii) obtain, effect and maintain in full force and effect all
material governmental and regulatory consents, licenses,
exemptions, clearances, filings, registrations and
authorizations necessary for the conduct of the business,
trade and ordinary activities of the Borrower and its
Subsidiaries.
(f) INSURANCE. The Borrower shall maintain, and cause each Subsidiary to
maintain, insurance on and in relation to its business and assets
against such risks and to such extent as it reasonably considers
good business practice for companies carrying on a business such as
that carried on by the relevant Person.
16
(g) LIMITATIONS ON INDEBTEDNESS. The Borrower shall not, and shall not
permit any of its Restricted Subsidiaries (as defined in the Common
Agreement) to, directly or indirectly, create, incur, assume or
permit to remain outstanding any Indebtedness except the following
("PERMITTED INDEBTEDNESS"):
(i) Indebtedness in an aggregate principal amount outstanding that
does not exceed the greater of (i) the sum of (A)(x) if the
Brazilian Debenture is executed, $700,000,000, or (y) if the
Brazilian Debenture is not executed, $545,000,000 (being in
each case the total amount of Indebtedness able to be incurred
under clauses (a), (e), (g) (but only if the Brazilian
Debenture is executed), (h) and (l) of Section 6.01 of the
Common Agreement), plus (B) the aggregate amount of existing
Indebtedness set forth in Schedule 6.01 and the Indebtedness
permitted from time to time under clauses (i) and (m) of
Section 6.01 of the Common Agreement, and (ii) 110% of the
amount (in Dollars or Dollar Equivalents) of the Indebtedness
provided for in the Budget most recently approved by the board
of directors of the Borrower;
(ii) Indebtedness of the Borrower to any Subsidiary of the
Borrower, or Indebtedness of any Subsidiary of the Borrower to
the Borrower or any other Subsidiary of the Borrower;
(iii) Indebtedness under currency or interest rate hedging
agreements;
(iv) Indebtedness in respect of performance bonds, bankers'
acceptances and letters of credit provided in the ordinary
course of business;
(v) Indebtedness to renew, extend, refinance or replace any
Indebtedness permitted by this Section, PROVIDED that such
Indebtedness does not exceed the principal amount of and
premium, if any, on the Indebtedness being renewed, extended,
refinanced or replaced, plus reasonable costs and expenses
incurred upon such renewal, extension, refinancing or
replacement; and
(vi) Indebtedness under this Agreement, subject to the conditions
hereof.
17
(h) LIMITATIONS ON INVESTMENTS. The Borrower shall not, and shall not
permit any Restricted Subsidiary (as defined in the Common
Agreement) to, purchase, own, invest in or otherwise acquire,
directly or indirectly, any investment that is prohibited under
Section 6.04(a) of the Common Agreement.
(i) LIMITATIONS ON LIENS. The Borrower shall not, and shall not permit
any Subsidiary to, create or have outstanding any Lien on or over
any assets, except for:
(i) LIENS PERMITTED UNDER SECTION 6.02 of the Common Agreement;
and
(ii) other Liens created or outstanding on or over assets of the
Borrower or any Subsidiary not at any time exceeding
$10,000,000 (or Dollar Equivalent) in the aggregate;
PROVIDED that, except in connection with the Vendor Financing
Facility and other senior secured financing permitted under the
Vendor Financing Facility, the Borrower shall not, and shall not
permit any Subsidiary to, create or have outstanding any Lien on any
shares of capital stock or other equity interest of of any
Subsidiary of the Borrower other than any Unrestricted Subsidiary.
(j) ASSET SALES. The Borrower shall not, and shall not permit any
Subsidiary to, sell, lease, assign, transfer or otherwise dispose of
any of its property, business or assets, including, without
limitation, the sale of any receivables or leasehold interests and
any sale-leaseback or similar transaction (each of the foregoing
transactions, an "ASSET SALE"), whether now or hereafter acquired
except:
(i) the sale of inventory, equipment or services to customers in
the ordinary course of business;
(ii) the sale of obsolete assets no longer used or usable in the
business of the Group;
(iii) the sale or discount without recourse of receivables arising
in the ordinary course of business in connection with the
compromise or collection thereof;
18
(iv) asset sales permitted by clauses (v), (vi), (vii) and (viii)
of Section 6.04(b) of the Common Agreement;
(v) the transfer by any Subsidiary of any of its property to any
other Subsidiary or to the Borrower; and
(vi) other Asset Sales not exceeding $5,000,000 (or Dollar
Equivalent) in the aggregate.
(k) CAPITAL EXPENDITURES. The Borrower shall not, and shall not permit
any Subsidiary to, make any Capital Expenditure that would cause the
aggregate of all Capital Expenditures of Borrower and its
Subsidiaries on a consolidated basis to exceed (i) in any fiscal
quarter, an amount equal to 120% of the level of Capital
Expenditures provided for in the most recently delivered Budget with
respect to such fiscal quarter, or (ii) in any fiscal year, an
amount equal to 115% of the level of Capital Expenditures provided
for in the most recently delivered Budget with respect to such
fiscal year.
(l) PAYMENT OF TAXES. The Borrower and each of the Subsidiaries shall
duly and timely file or cause to be duly and timely filed all tax
returns which are required to be filed and shall duly and timely pay
all taxes shown to be due and payable on such returns or on any
assessments made against it or any of its property by a government
authority or otherwise payable by it (other than any amount the
validity of which is contested in good faith by appropriate
proceedings and with respect to which adequate reserves are
established in the books of the Borrower or the Subsidiaries, as the
case may be) except to the extent that failure to comply with this
paragraph would not reasonably be expected to have a Material
Adverse Effect.
(m) FUTURE GUARANTORS; PLEDGE OF NOTES. With respect to any Loans
hereunder that are extended to the Borrower, the Borrower shall
cause each of its subsidiaries (as specified by the Lenders, but
excluding any Unrestricted Subsidiaries of ATTL) to execute and to
deliver to the Lenders a subordinated guaranty in form and substance
reasonably acceptable to the Lenders, as promptly as practicable
after the date on which the issuance of such guaranties is permitted
under the Vendor Financing Facility. With respect to any Loan
hereunder that is extended to any Borrowing Subsidiary, (i) the
Borrower shall execute and deliver to the Lenders a guaranty in form
and substance reasonably acceptable to the Lenders, and (ii) the
Lenders acknowledge and agree that the Borrower may, or may cause
such Borrowing Subsidiary to, pledge to the Collateral Agent under
19
the Vendor Financing Facility the note or notes evidencing such
Loan, to the extent required under the Common Agreement.
11. EVENTS OF DEFAULT.
The Events of Default in this Agreement are:
(a) subject to Section 7(b), failure by the Borrower to make, or to
cause an applicable Borrowing Subsidiary to make, any repayment of
principal on any Loan, for more than three Business Days after such
principal becomes due and payable, whether at maturity or at a date
fixed for prepayment pursuant to Section 3(b), Section 3(c) or
Section 3(d); or
(b) subject to Section 7(b), failure by the Borrower or any Borrowing
Subsidiary to make payment of any interest on any Loan for more than
three Business Days after such interest becomes due and payable; or
(c) at any time when no Senior Obligations are outstanding under the
Vendor Financing Facility, the Borrower or any Borrowing Subsidiary
defaults in its performance of or compliance with any other term
contained herein (other than those referred to in paragraphs (a) or
(b) of this Section ) and such default is not remedied within 30
days after the earlier of (I) an officer of the Borrower or such
Borrowing Subsidiary, as the case may be, obtaining actual knowledge
of such default and (II) the Borrower or such Borrowing Subsidiary,
as the case may be, receiving written notice of such default from
the Lenders (any such notice to be identified as a "notice of
default" and to refer specifically to this paragraph (c) of Section
11); or
(d) (I) the Borrower or any Subsidiary is in default (as principal or as
guarantor or other surety) in the payment of any principal of or
premium or make-whole amount or interest on any indebtedness for
borrowed money that is outstanding in an aggregate principal amount
of at least $5,000,000 (or Dollar Equivalent) beyond any period of
grace provided with respect thereto, or (II) the Borrower or any
Subsidiary is in default in the performance of or compliance with
any material term of any evidence of any indebtedness for borrowed
money in an aggregate outstanding principal amount of at least
$5,000,000 (or Dollar Equivalent) or of any mortgage, indenture or
other agreement relating thereto or any other condition exists, and
as a consequence of such default or condition such indebtedness has
become, or has been declared due and payable before its stated
maturity or before its regularly scheduled dates of payment; or
20
(e) the Borrower or any Subsidiary (I) is generally not paying, or
admits in writing its inability to pay, its debts as they become
due, (II) files, or consents by answer or otherwise to the filing
against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or
to take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (III) makes as
assignment for the benefit of its creditors, (IV) consents to the
appointment of a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any substantial
part of its property, (V) is adjudicated as insolvent or to be
liquidated, or (VI) takes action for the purpose of any of the
foregoing; or
(f) a court or governmental authority of competent jurisdiction enters
an order appointing, without consent by the Borrower or any
Subsidiary, a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any substantial
part of its property, or constituting an order for relief or
approving a petition for relief or reorganization or any other
petition in bankruptcy or for liquidation or to take advantage of
any bankruptcy or insolvency law of any jurisdiction, or ordering
the dissolution, winding-up or liquidation of the Borrower or any
Subsidiary or any such petition shall be filed against the Borrower
or any Subsidiary and such petition shall not be dismissed within 60
days; or
(g) a final judgment or judgments for the payment of money aggregating
in excess of $5,000,000 (or Dollar Equivalent) are rendered against
the Borrower or any Subsidiary and which judgments are not, within
60 days after entry thereof, bonded, discharged or stayed pending
appeal, or are not discharged within 60 days after the expiration of
such stay; or
(h) revocation or non-renewal of any license, concession or similar
authorization that is material to the business of the Group as
currently conducted or planned to be conducted in accordance with
the most recently delivered Budget; or
(i) expropriation or nationalization of any material assets, business or
business unit of the Borrower or any Subsidiary, or any state of war
or political conflict or imposition of any restriction on currency
convertibility or transferability of funds that is reasonably likely
to have a Material Adverse Effect.
21
12. REMEDIES UPON DEFAULT, ETC.
(a) Subject to Section 7, if any Event of Default referred to in Section
11 shall have occurred and be continuing, (X) upon the occurrence of
any such Event of Default described in clauses (e) or (f) of Section
11, the whole amount of the outstanding Loans and all accrued
interest and other amounts owing thereunder shall automatically
become due and payable, or (Y) upon the occurrence of any other
Event of Default described in Section 11, the Lenders may at anytime
at their option, by demand in writing to the Borrower, declare the
whole amount of the outstanding Loan to be immediately due and
payable.
(b) Subject to Section 7, upon any portion of the Loans becoming due and
payable under this Section 12, whether automatically or by
declaration, the entire unpaid principal amount of the Loans plus
all accrued and unpaid interest thereon, shall all be immediately
due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived.
(c) OTHER REMEDIES. Subject to Section 7, if any Event of Default has
occurred and is continuing, and irrespective of whether the Loan has
become or has been declared immediately due and payable under this
Section, the Lenders may at the time that the Loan is outstanding,
proceed to protect and enforce the rights of such holder by an
action at law, suit in equity or other appropriate proceeding,
whether for the specific performance of any agreement contained
herein, or for an injunction against a violation of any of the terms
hereof or thereof, or in aid of the exercise of any power granted
hereby or thereby or by law or otherwise.
(d) NO WAIVERS OR ELECTION OF REMEDIES, EXPENSES, ETC. No course of
dealing and no delay on the part of the Lenders in exercising any
right, power or remedy shall operate as a waiver thereof or
otherwise prejudice each of the Lender's rights, powers or remedies.
No right, power or remedy conferred by this Agreement upon the
Lenders shall be exclusive of any other right, power or remedy
referred to herein or therein or now or hereafter available at law,
in equity, by statute or otherwise. The Borrower will pay to the
Lenders on demand such further amount as shall be sufficient to
cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 12, including, without
limitation, reasonable attorneys' fees, expenses and disbursements.
22
13. TAXES.
(a) Subject to the following, all payments due under this Agreement
shall be made in full without any deduction or withholding
whatsoever for Taxes, unless such withholding or deduction is
required by law. If the Lenders present to the Borrower a
certificate signed by officers of the Lenders stating that a credit
against the Lenders' U.S. federal income tax liability for any Tax
which may be withheld or deducted from any payment is not currently
utilizable, the Borrower and Borrowing Subsidiaries (with respect to
payments required hereunder after the Borrower's receipt of such
certificate) shall pay to the Lenders such additional amount so that
the net amount received by the Lenders after any required deduction
or withholding will equal the full amount which would have been
received by the Lenders had no such deduction or withholding been
made. Notwithstanding the foregoing, if any deduction or withholding
from any payment to the Lenders hereunder is required in respect of
Taxes other than income taxes (including, without limitation, value
added taxes or license taxes or fees), the Borrower and Borrowing
Subsidiaries shall pay to the Lenders (whether or not the Lenders
have delivered the officer's certificate described above) such
additional amount so that the net amount received by the Lenders
after any required deduction or withholding of such non-income Taxes
will equal the full amount which would have been received by the
Lenders had no such deduction or withholding in respect of such
Taxes been made. Whenever any Taxes are required to be withheld or
deducted from any payment hereunder, as promptly as possible
thereafter, the Borrower and Borrowing Subsidiaries shall send to
the Lenders a copy of an original official receipt received by the
Borrower and Borrowing Subsidiaries showing payment thereof or such
other evidence of payment satisfactory to the Lenders. If the
Borrower and Borrowing Subsidiaries fail to pay any Taxes when due
to the appropriate taxing authority or fail to provide to the
Lenders the required receipts or other documentary evidence, the
Borrower and Borrowing Subsidiaries shall indemnify the Lenders for
any Taxes, interest or penalties (and related reasonable fees and
expenses of counsel) that may become payable by the Lenders as a
result of such failure.
(b) The Borrower and each Borrowing Subsidiary shall pay, and shall
jointly and severally indemnify and hold harmless the Lenders and
reimburse the Lenders upon written request, for any bank charges,
capital circulation charges, court or documentary taxes, CMPF, other
financial transaction taxes or any other Taxes, charges or similar
levies imposed by any
23
jurisdiction in connection with the execution, delivery, enforcement or
performance of this Agreement.
14. INCREASED COSTS.
If any Lender determines that, as a result of the introduction of or any
change in, or in the interpretation or application of, any law or
government regulation or directive after the date of this Agreement:
(i) it incurs a cost in maintaining all or part of any Loan except for
its own costs of borrowing; and/or
(ii) any sum received or receivable by it under this Loan Agreement or
the effective return to it under this Loan Agreement or the overall
return on its capital is reduced (except on account of Tax on its
overall net income); and/or
(iii) it makes any payment (except on account of Tax on its overall net
income) or forgoes any interest or other return on or calculated by
reference to the amount of any sum received or receivable by it
under this Agreement,
the Borrower and each Borrowing Subsidiary jointly and severally shall
indemnify it against that cost, reduction, payment or forgone interest or
other return (except to the extent that it results from a deduction or
withholding of Tax) and, accordingly, shall from time to time on demand
(whenever made) pay to such Lender the amount certified by it to be
necessary so to indemnify it. For the avoidance of doubt, the
indemnification referred to in the preceding sentence shall apply to such
Regulation D Costs, if any, as may be applied to the Lenders from time to
time.
15. INDEMNITIES.
(a) MISCELLANEOUS INDEMNITIES. The Borrower and each Borrowing
Subsidiary shall jointly and severally on demand indemnify each
Lender against any funding or other cost, loss, expense or liability
sustained or incurred by it as a result of:
(i) the Loan not being made by reason of the Borrower purporting
to revoke any Borrowing Notice;
(ii) the occurrence or continuance of any Event of Default; or
24
(iii) the receipt or recovery by any party of all or any part of the
Loan or overdue sums otherwise than on the date such amount is
due or the Interest Payment Date.
(b) TRANSACTION INDEMNITY.
(i) The Borrower and each Borrowing Subsidiary shall indemnify and
hold each Lender and its respective directors, officers,
agents and affiliates (the "INDEMNIFIED PARTIES") harmless
from and against any and all claims, damages, liabilities,
taxes, costs and expenses (including reasonable legal fees,
travel and other expenses and disbursements) which may be
incurred by or asserted against the Indemnified Parties in
connection with or arising out of any investigation,
litigation or proceeding relating to this Agreement (except
for any arising out of any Indemnified Party's gross
negligence or willful default) whether or not the Indemnified
Parties are parties thereto, and will pay all costs and
expenses of the Indemnified Parties (including all reasonable
legal and proper fees, expenses and disbursements) incurred or
sustained by the Indemnified Parties in connection with the
same whether or not the Loan is utilized.
(ii) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such
party in respect of which a claim is to be made against the
Borrower under this Section notify the Borrower of the
commencement of such action, suit or proceeding, enclosing a
copy of all papers served, but the omission so to notify the
Borrower of any such action, suit or proceeding shall not
relieve the Borrower from any liability that it may have to
any Indemnified Party unless the Borrower is effectively
precluded from exercising any of its material rights to
contest such claim as a result of such omission to notify.
(iii) In case any such action, suit or proceeding shall be brought
against any Indemnified Party and notification has been made
to the Borrower of the commencement thereof, the Borrower
shall be entitled to participate in such action, suit or
proceeding.
(c) INDEMNITIES SEPARATE. Each of the indemnities in this Agreement
constitutes a separate and independent obligation from the other
25
obligations in this Agreement, shall give rise to a separate and
independent cause of action, shall apply irrespective of any
indulgence granted by the Lenders and shall continue in full force
and effect despite any judgment, order, claim or proof for a
liquidated amount in respect of any sum due under this Agreement or
any other judgment or order.
16. CHANGE IN MARKET CONDITIONS.
(a) LIBOR. If in relation to any Interest Period, the Lenders are unable
to determine the LIBOR Rate, the Lenders shall promptly notify the
Borrower and the Loan shall not be made.
(b) NEGOTIATION. The Borrower and the Lenders shall then negotiate until
not more than 25 days after such determination by the Lenders with a
view to agreeing on an alternative basis for calculating the
interest payable on and/or funding the affected Loan or Loans. Any
alternative basis agreed in writing by the Lenders and the Borrower
within that 25 day period shall take effect in accordance with its
terms.
(c) SUBSTITUTE INTEREST RATE. If an alternative basis for calculating
the interest payable is not agreed in writing pursuant to Section
16(b), the Loan shall during that Interest Period bear interest at
the rate per annum equal to the sum of the Mandatory Costs and the
cost to the Lenders (expressed as a rate per annum) of funding the
Loan during that Interest Period by whatever means it determines to
be appropriate. The Lenders shall certify that cost to the Borrower
as soon as practical after the Lenders' determination of the event
in question (but in any event at least two Business Days before the
end of that Interest Period).
17. APPLICABLE LAW/SUBMISSION TO JURISDICTION.
This Agreement shall be governed by and construed in accordance with the
law of the State of New York. Each of the parties hereto hereby
irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the courts of the State of New York and of the United
States of America located in the State of New York (the "NEW YORK COURTS")
for any litigation arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any
litigation relating thereto except in such courts), waives any objection
to the laying of venue of any such litigation in the New York Courts and
agrees not to plead or claim in any New York Court that such litigation
brought therein has been brought in an inconvenient forum.
26
18. ASSIGNMENT.
None of the parties hereto may assign or otherwise transfer any of its
rights under this Agreement, except that (i) the Lenders may assign this
Agreement, and all or any portion of any Note or Notes, to any Affiliate
or successor of AT&T, and (ii) in connection with the capitalization of
any Borrowing Subsidiary as required to meet statutory minimum capital
requirements, the Borrower or any Borrowing Subsidiary may assign its
obligations with respect to any Loan to any other Borrowing Subsidiary or
to the Borrower after obtaining the consent of the Lenders (such consent
not to be unreasonably withheld or delayed) and executing and delivering
such assignments and other documents as the Lenders may reasonably
request.
19. COUNTERPARTS.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof
each signed by less than all, but together signed by all, of the parties
hereto.
20. DEFINITIONS.
"AFFILIATE" means, with respect to any Person, another Person that
directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. For this
purpose, "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management policies of a
Person, whether through the ownership of voting securities, by contract or
credit arrangement, as trustee or executor, or otherwise.
"AGGREGATE COMMITMENT" has the meaning set forth in the Recitals.
"AGREEMENT" has the meaning set forth in the Preamble hereto.
"ASSET SALE" has the meaning set forth in Section 10(j).
"AT&T" has the meaning set forth in the Preamble hereto.
"ATTL" has the meaning set forth in the Preamble hereto.
"B VOTING PREFERRED STOCK" means voting preferred stock, having
characteristics other than voting rights substantially identical to those
of the 15% Series B Cumulative Preferred Stock identified on the corporate
records of ATTL.
27
"BASKET INDEBTEDNESS" means Indebtedness permitted under Section 10(g)
that does not constitute "Senior Obligations" under the Subordination
Agreement.
"BORROWER" has the meaning set forth in the Preamble hereto.
"BORROWING NOTICE" has the meaning set forth in Section 2(a).
"BORROWING PARTIES" means the Borrower and the Borrowing Subsidiaries.
"BORROWING SUBSIDIARY" has the meaning set forth in the Preamble hereto.
"BRAZILIAN DEBENTURE" means debentures issued in the Brazilian capital
market by a Subsidiary of the Borrower, in up to $155,000,000 or
equivalent principal amount.
"BUDGET" has the meaning set forth in Section 10(a).
"BUSINESS DAY" means any day other than a Saturday, Sunday or day on which
commercial banking institutions are authorized or required by law,
regulation or executive order to be closed in New York, New York .
"CAPITAL EXPENDITURES" means, for any Person for any period, the sum of
all expenditures made, directly or indirectly, by such Person or any of
its Subsidiaries during such period for equipment, assets, real property
or improvements, or for replacements or substitutions therefor or
additions thereto, that would in accordance with U.S. Generally Accepted
Accounting Principles be reflected as additions to property, plant or
equipment on a consolidated balance sheet of such Person.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to
time.
"COMMON AGREEMENT" means the Common Agreement, dated as of December 21,
2001, among ATTL, Latin American Equipment Finance B.V., the
administrative agents party thereto and ABN AMRO Trustees Limited, as
collateral and intercreditor agent, executed and delivered in connection
with the Vendor Financing Facility, as in effect as of the Effective Date.
"CONSOLIDATED EBITDA" means, for any period, the Consolidated Net Income
for such period plus without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated
interest expense for such period, (ii) consolidated income tax expense for
such period, (iii) all amounts attributable to depreciation and
amortization for such period; PROVIDED that there
28
shall be excluded from such Consolidated EBITDA without duplication and to
the extent included in determining Consolidated Net Income, (a) the
Consolidated EBITDA (whether positive or negative) of any Person,
property, business or asset sold, transferred or otherwise disposed of
(including businesses discontinued during such period) by any "Loan Party"
(as defined in the Common Agreement) during or subsequent to the end of
such period based on the actual Consolidated EBITDA of such Person,
property or business for such period (including the portion thereof
occurring prior to such sale, transfer or disposition), (b) any
extraordinary gains or losses, (c) any restoration of any contingency
reserve, except to the extent the provision for such reserve was made out
of income for such period, (d) any net gain or loss on the sale or other
disposition, other than in the ordinary course of business, of any equity
interests and other investments and any related charges for Taxes of any
member of the Group (other than, in the case of charges for Taxes, any
value-added or similar Taxes, to the extent recoverable by the applicable
Group member), (e) any net gain or loss arising from the collection of the
proceeds of any insurance policy, (f) any write-up of any asset, (g) any
non-cash write down of any asset (other than inventory, accounts
receivable or other current assets), (h) any net gain resulting from the
extinguishment or defeasance of any Indebtedness and (i) any currency
translation gains or losses.
"CONSOLIDATED NET INCOME" or "CONSOLIDATED NET LOSS" means, for any fiscal
period, the amount which, in conformity with GAAP, would be set forth
opposite the caption "net income" (or any like caption) or "net loss" (or
any like caption), as the case may be, on a consolidated statement of
earnings of the Borrower and its Subsidiaries for such fiscal period.
"DISQUALIFIED STOCK" means any equity interest of any member of the Group,
other than any Unrestricted Subsidiary, which by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable or exercisable) or upon the happening of any event, in either
case while any amount remains outstanding under the Vendor Financing
Facility, (a) matures or is mandatorily redeemable pursuant to a sinking
fund obligation or otherwise, (b) is convertible or exchangeable for
Indebtedness or Disqualified Stock, (c) requires the payment of dividends
other than dividends payable solely in additional equity interests of ATTL
(other than Disqualified Stock) or (d) is redeemable or subject to
required repurchase at the option of the holder thereof , in whole or in
part.
"DOLLARS" and "$" mean lawful currency of the United States of America.
29
"DOLLAR EQUIVALENT means with respect to any amount denominated in a
foreign currency, at any date of determination thereof, an amount in
Dollars equivalent to such amount calculated on the basis of the Spot Rate
of Exchange.
"EFFECTIVE DATE" means the Effective Date as defined in the Common
Agreement.
"EVENT OF DEFAULT" means any one of the events mentioned in Section 11.
"EXISTING LOAN AGREEMENTS" has the meaning set forth in the Recitals.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time.
"GLOBAL" has the meaning set forth in the Preamble hereto.
"GROUP" means, at any particular time, the Borrower and its Subsidiaries
(and "member of the Group" shall be construed accordingly).
"INDEBTEDNESS" of any Person at any date, means (a) all obligations of
such Person for borrowed money, (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all
obligations of such Person in respect of the deferred purchase price of
property or services (other than current trade payables and similar
current liabilities incurred in the ordinary course of such Person's
business (whether or not evidenced by a promissory note), in each case not
overdue by more than 60 days, except to the extent such overdue amount is
attributable to a good faith dispute), (e) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed, (f) all Guaranties by such Person of
Indebtedness of others, (g) all capital lease obligations of such Person,
(h) all obligations, contingent or otherwise, of such Person as an account
party in respect of letters of credit and letters of guaranty, (i) all
obligations, contingent or otherwise, of such Person in respect of
bankers' acceptances, (j) the value of all Disqualified Stock of such
Person owned by any Person other than such Person, determined for this
purpose as the higher of (A) the aggregate liquidation preference of such
Disqualified Stock or (B) the aggregate amount payable upon the maturity
of such Disqualified Stock (other than accrued dividends), (k) any
obligation of such Person to purchase securities or other property that
arises out of or in connection with the sael of the same or substantially
similar securities or property and (l) the net liabilities of such Person
30
under Hedging Agreements. The Indebtedness of any Person shall exclude
deferred taxes and shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to
the extent such Person is liable therefore as a result of such Person's
ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not
liable therefor.
"INDEMNIFIED PARTIES" has the meaning set forth in Section 15(b).
"INTEREST LOAN" has the meaning set forth in Section 1(e).
"INTEREST PERIOD" has the meaning set forth in Section 5(b).
"INVESTMENTS" has the meaning set forth in Section 10(h).
"LENDER" has the meaning set forth in the Preamble hereto.
"LIBOR RATE" has the meaning set forth in Section 5(e).
"LEVERAGE RATIO" means, on any date, the ratio of (a) Total Indebtedness
on such date, to (b) Consolidated EBITDA of ATTL for the period of four
consecutive quarters ended on such date (or, if such date is not the last
day of a fiscal quarter, ended on the last day of the fiscal quarter of
ATTL most recently ended).
"LIEN" means, with respect to any Person, any lien, pledge, charge,
security interest, encumbrance or any interest or title of any vendor,
lessor, lender or other secured party to or of such Person.
"LOAN" means any Tranche A Loan, Tranche B Loan, Tranche C Loan, Tranche D
Loan or Interest Loan, as the context shall require.
"MANDATORY COSTS" means, in relation to any Interest Period (or part of an
Interest Period) relating to a Loan or overdue sum, the percentage rate
per annum reasonably determined by the Lenders by reference to the then
prevailing market spread over funding cost for comparable obligations.
"MARGIN" has the meaning set forth in Section 5(e).
"MATERIAL ADVERSE EFFECT" has the meaning set forth in Section 9(b).
"NEW YORK COURTS" has the meaning set forth in Section 17.
"NOTE" has the meaning set forth in Section 4.
31
"OPERATIVE DOCUMENTS" means this Agreement, each Note, the Warrant
Agreement[, the Warrant Registration Rights Agreement] and each guaranty,
if any, issued in accordance with Section 10(m).
"PERMITTED INDEBTEDNESS" has the meaning set forth in Section 10(g).
"PERMITTED INVESTMENTS" means:
(i) marketable obligations maturing within one year or less after
acquisition thereof, issued or guaranteed by the United States of
America or an instrumentality or agency thereof;
(ii) certificates of deposit, maturing within one year after acquisition
thereof, or open market commercial paper maturing within 270 days
after acquisition thereof, in each case issued by a bank or other
regulated financial institution organized in any OECD-member country
having capital, surplus and undivided profits as of December 31,
1999 of at least $1,000,000,000 or equivalent and having a
commercial paper rating of A-1 or P-1, and, with respect to
non-Dollar investments made in the countries in which Subsidiaries
of the Borrower operate, similar obligations in local currency
maturing in less than one year and issued by regulated financial
institutions having capital, surplus and undivided profits of at
least $500,000,000 or equivalent;
(iii) Investments in any Person received solely in consideration for the
issuance by the Borrower of its capital stock, PROVIDED that after
giving effect to such Investment on a historical pro forma basis
there would not be any breach of Section 10(g) or any other covenant
contained herein;
(iv) trade credit extended to customers of any member of the Group in the
ordinary course of business;
(v) guaranties and similar support arrangements relating to Permitted
Indebtedness; or
(vi) Investments permitted under clauses (ii), (xii), (xiii), (xiv) and
(xv) of Section 6.04(a) of the Common Agreement. [relate to
scheduled existing investments, loans to officers and directors
under plans up to $1MM, cash deposits/pledges for leases and
utilities, non-cash consideration for asset sales subject to 6.04(b)
limit of $3MM/yr and for IRU swaps]
32
"PERSON" means any individual, corporation, company, limited liability
company, association, partnership, trust, estate, governmental authority
or other entity.
"REFINANCING PRIVATE EQUITY" means equity interests issued by ATTL not in
a registered public offering that (i) refinance or replace Loans (but only
to the extent of the amount of Loans so refinanced or replaced), and (ii)
are not Disqualified Stock.
"REGULATION D COSTS" means any costs under Regulation D of the Board of
Governors of the United States Federal Reserve System.
"REQUIREMENT OF LAW" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents
of such Person, and any law, statute, ordinance, code, decree, treaty,
rule or regulation or determination of an arbitrator or a court or other
governmental authority, in each case applicable to or binding upon such
Person or any of its property or assets or to which such Person or any of
its property or assets are subject; provided that the foregoing shall not
apply to any non-binding recommendation of any governmental authority.
"SENIOR OBLIGATIONS" has the meaning specified in the Subordination
Agreement from time to time.
"SPOT RATE OF EXCHANGE," with respect to any foreign currency, at any date
of determination thereof, means the spot rate of exchange in London that
appears on the display page applicable to such foreign currency on the Dow
Xxxxx Market Service (or such other page as may replace such page for the
purpose of displaying the spot rate of exchange in London); PROVIDED that
if there shall at any time no longer exist such a page, the spot rate of
exchange shall be determined in reference to another similar rate
publishing service selected by the Lenders.
"SUBSIDIARY" means any Person in which a Person owns or controls, directly
or indirectly, capital stock or other equity interests representing more
than 50% of the outstanding voting stock or other equity interests of such
Person and representing more than 50% of the voting rights attaching
thereto.
"SUBORDINATION AGREEMENT" has the meaning set forth in Section 7.
"SUPPLEMENTAL AGREEMENT" has the meaning set forth in Section 1(d).
"TAX" or "TAXES" means all income, profits, franchise, gross receipts,
capital, net worth, sales, use, withholding, turnover, value added, ad
valorem, registration,
33
general business, employment, social security, disability, occupation,
real property, personal property (tangible and intangible), stamp,
transfer (including real property tranfer or gains), conveyance,
severance, production, excise and other taxes, withholdings, duties,
levies, imposts, license and registration fees and other similar charges
and assessments (including any and all fines, penalties and additions
attributable to or otherwise imposed on or with respect to any such taxes,
charges, fees, levies or other assessments, and interest thereon) imposed
by or on behalf of any governmental entity.
"TERMINATION DATE" means the earliest to occur of (I) the final maturity
date specified in Section 3(a), and (II) any date on which the Aggregate
Commitment has been reduced to zero.
"TOTAL INDEBTEDNESS" means, as of any date, the sum, without duplication,
of (a) the aggregate principal amount of Indebtedness of the Group other
than Unrestricted Subsidiaries outstanding as of such date, in the amount
that would be reflected on a balance sheet prepared as of such date in
accordance with GAAP, determined on a consolidated basis, plus (b) the
aggregate principal amount of Indebtedness of the Group other than
Unrestricted Subsidiaries outstanding as of such date that is not required
to be reflected on a balance sheet in accordance with GAAP, determined on
a consolidated basis; PROVIDED that (i) Loans and any Subsidiary
Guaranties relating thereto shall not be included in "Total Indebtedness"
and (ii) for purposes of clause (b) above, the term "Indebtedness" shall
not include contingent obligations of any member of the Group as an
account party in respect of any letter of credit or letter of guaranty
unless such letter of credit or letter of guaranty supports and obligation
that constitutes Indebtedness.
"TRANCHE A LOAN" has the meaning set forth in Section 1(a).
"TRANCHE B LOAN" has the meaning set forth in Section 1(b).
"TRANCHE C LOAN" has the meaning set forth in Section 1(c).
"TRANCHE D LOAN" has the meaning set forth in Section 1(d).
"UNRESTRICTED SUBSIDIARY" means a Subsidiary of ATTL designated as an
"Unrestricted Subsidiary" in accordance with the terms of the Common
Agreement.
"VENDOR FINANCING FACILITY" means the financing facilities provided under
the Common Agreement and the several Initial Participating Credit
Agreements among ATTL and the other parties thereto from time to time in a
total commitment amount of up to $297,735,000 and the ancillary documents
and agreements executed in connection therewith.
"WARRANT" has the meaning set forth in Section 1A.
34
In witness whereof, the parties hereto have executed this Agreement and
caused the same to be delivered on their behalf as of the date first written
above.
Witness: AT&T Corp.
-----------------------------
Name: By:
--------------------------------
Witness: Name:
----------------------------- Title:
Name:
Witness: Global Card Holdings Inc.
-----------------------------
Name: By:
--------------------------------
Witness: Name:
----------------------------- Title:
Name:
Witness: AT&T Latin America Corp.
-----------------------------
Name: By:
--------------------------------
Witness: Name:
----------------------------- Title:
Name:
Witness: AT&T Argentina S.A.
-----------------------------
Name: By:
--------------------------------
Witness: Name:
----------------------------- Title:
Name:
Witness: AT&T Peru S.A.
-----------------------------
Name: By:
--------------------------------
Witness: Name:
----------------------------- Title:
Name:
35
Witness: AT&T do Brasil S.A.
-----------------------------
Name: By:
--------------------------------
Witness: Name:
----------------------------- Title:
Name:
Witness: AT&T Colombia S.A.
-----------------------------
Name: By:
--------------------------------
Witness: Name:
----------------------------- Title:
Name:
Witness: AT&T Chile S.A.
-----------------------------
Name: By:
--------------------------------
Witness: Name:
----------------------------- Title:
Name:
Witness: AT&T Argentina S.A.
-----------------------------
Name: By:
--------------------------------
Witness: Name:
----------------------------- Title:
Name:
36
SCHEDULE A
AT&T Argentina S.A.
AT&T Peru S.A.
AT&T do Brasil S.A.
AT&T Colombia S.A.
AT&T Chile S.A.
SCHEDULE B
Existing Loan Agreements
1. $100 million Credit Facility Agreement, dated as of July 28, 2000
2. Amended and Restated $200 million Subordinated Note Agreement, dated as of
January 18, 2001
3. 15% Demand Note, dated September 13, 2001, in the principal amount of $28
million (Tranche C)
4. 15% Demand Note, dated July 30, 2001, in the principal amount of $25 million
(Tranche C)
5. 15% Demand Note, dated July 6, 2001, in the principal amount of $25 million
(Tranche C)
6. 15% Demand Note, dated June 11, 2001, in the principal amount of $20 million
(Tranche C)
7. 15% Demand Note, dated November 16, 2001, in the principal amount of $60
million (Tranche D) (Principal amount of this note was capped at $51,757,280.00
when the note referred to below, dated February 1, 2002, was issued.)
8. 15% Demand Note, dated December 12, 2001, in the principal amount of $27
million (Tranche D) 9. 15% Demand Note, dated February 1, 2002, in the principal
amount of $8,242,720.00 (Tranche D)
SCHEDULE C
Outstanding Loan Amounts
------------------- --------------------------- --------------------------------- ---------------------------
Tranche Principal ($MM) Capitalized Interest Accrued and Unpaid
As of 2/21/02 (uncapitalized) Interest
as of 2/21/02
------------------- --------------------------- --------------------------------- ---------------------------
A 100.0 7,750,777 867,175
------------------- --------------------------- --------------------------------- ---------------------------
B 200.0 14,965,634 3,841,241
------------------- --------------------------- --------------------------------- ---------------------------
C 98.0 3,906,608 3,378,015
------------------- --------------------------- --------------------------------- ---------------------------
D 87.0 1,000,000 2,627,748
------------------- --------------------------- --------------------------------- ---------------------------
Total 485.0 27, 623,019 10,714,179
------------------- --------------------------- --------------------------------- ---------------------------
SCHEDULE D
NUMBER OF SHARES
FACILITY ISSUABLE UPON EXERCISE EXERCISE PRICE
-------- ---------------------- --------------
$177M Preferred 500,041 $0.01
500,041 $8.00
$200M 513,420 $0.01
513,420 $8.00
$98M 746,018 $0.01
746,018 $8.00
$150M 691,324 $0.01
691,324 $8.00
EXHIBIT A
FORM OF BORROWING REQUEST
To: Global Card Holdings Inc. and AT&T Corp.
The undersigned, AT&T Latin America Corp. (the "BORROWER"), refers to the
Credit Facility Agreement, dated as of February 27, 2002 (as amended,
supplemented or otherwise modified from time to time, the "Agreement"), among
Global Card Holdings Inc. and AT&T Corp. (the "LENDERS"), Borrower and certain
Subsidiaries of Borrower.
Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Agreement.
1. LOAN.
The Borrower hereby gives you notice pursuant to Section 2(a) of the
Agreement that it requests a Loan subject to and in accordance with the
terms of the Agreement and in that connection sets forth below the terms
on which such Loan is requested to be made:
(a) Aggregate Principal Amount of Loan under the Agreement as of today's
date: $______________________
(b) Borrowing Breakdown for Loan requested hereunder:
----------------------------------------------------------------------------------------------------
Borrower Amount of Borrowing Date of Borrowing
[and Borrowing Subsidiaries] (in Dollars) (which is a Business Day)
----------------------------------------------------------------------------------------------------
AT&T Latin America Corp. $
---------------- -----------------
Proposed Borrowing Subsidiaries:
$
------------------ ---------------- -----------------
$
------------------ ---------------- -----------------
$
------------------ ---------------- -----------------
$
------------------ ---------------- -----------------
---------------------------------- -------------------------------- --------------------------------
Total $ N/A
-----------------
---------------------------------- -------------------------------- --------------------------------
(c) Funds are requested to be disbursed to the Borrower's [or Borrowing
Subsidiary's] account with:
------------------------------------------------------------ ------------------------------------------------
Borrower [and Borrowing Subsidiaries] Account Information
------------------------------------------------------------ ------------------------------------------------
Bank Name: ____________________
A AT&T Latin America Corp Bank Address:__________________
Account Number: _______________
------------------------------------------------------------ ------------------------------------------------
Bank Name: ____________________
__ ____________________ Bank Address:__________________
Account Number: _______________
------------------------------------------------------------ ------------------------------------------------
Bank Name: ____________________
__ ____________________ Bank Address:__________________
Account Number: _______________
------------------------------------------------------------ ------------------------------------------------
Bank Name: ____________________
__ ____________________ Bank Address:__________________
Account Number: _______________
------------------------------------------------------------ ------------------------------------------------
Bank Name: ____________________
__ ____________________ Bank Address:__________________
Account Number: _______________
------------------------------------------------------------ ------------------------------------------------
Bank Name: ____________________
__ ____________________ Bank Address:__________________
Account Number: _______________
------------------------------------------------------------ ------------------------------------------------
2
2. CERTIFICATIONS.
As of the date hereof and as of each "Date of Borrowing" listed in 1(b):
(a) the Borrower and Borrowing Subsidiaries have performed and complied
with all the respective terms and conditions of the Agreement
applicable to them;
(b) there exists or will exist after giving effect to any Loan requested
hereunder no condition or event which constitutes or which, after
notice or passage of time or both, would constitute an Event of
Default;
(c) each of the representations and warrants contained in Section 9 of
the Agreement are, and will be after giving effect to any Loan
requested hereunder, true and correct; and
(d) the amounts of the Loan specified in this Borrowing Notice is
consistent with the Budget most recently delivered to the Lenders.
AT&T Latin America Corp.
By:
-------------------------------
Name:
Title: (CEO or CFO)
Date:
--------------------------
3
EXHIBIT B
PROMISSORY NOTE
$ [ ] Date ________ __, 200_
For value received, [AT&T Latin America Corp. ("BORROWER")][[Insert Name
of Borrowing Subsidiary if applicable] (the "BORROWING SUBSIDIARY")] hereby
promises to pay to the order of AT&T Corp., Global Card Holdings Inc. or the
respective Affiliates and successors of AT&T Corp. and Global Card Holdings Inc.
(collectively, the "LENDERS") on October 1, 2008, in lawful money of the United
States of America to an account specified in writing by Lenders, the principal
sum of [ ] together with interest at the rate per annum specified in the Credit
Facility Agreement, dated [ ], 2001 among Lenders, Borrower and certain
subsidiaries of Borrower (as amended, supplemented or otherwise modified from
time to time, the "AGREEMENT") in accordance with the terms and conditions of
such Agreement.
Each capitalized term not otherwise defined in this Note shall have the
meaning set forth in the Agreement.
[Borrower] [Borrowing Subsidiary] promises to pay interest on the unpaid
principal amount of its Loans at the rate per annum specified, and otherwise as
provided, in the Agreement. In case an Event of Default, as defined in the
Agreement, shall occur and be continuing, the unpaid balance of the principal of
this Note may be declared and become due and payable in the manner and with the
effect provided in the Agreement.
Each Loan owing to Lenders by [Borrower] [Borrowing Subsidiary]
pursuant to the Agreement, and all payments made on account of principal
thereof, shall be recorded by Lenders and, prior to any transfer thereof,
endorsed on the grid attached hereto which is part of this Note, PROVIDED that
failure of Lenders to make such endorsement shall not affect the liability of
[Borrower] [Borrowing Subsidiary] hereunder or under the Agreement.
Payments of the principal of and interest on this Note are subordinate and
junior, to the extent provided in the Agreement, to all Senior Obligations, as
such term is defined in the Agreement.
This Note is a Note referred to in, and is entitled to the benefits of,
the Agreement. This Note shall be governed by, and construed in accordance with,
the laws of the State of New York.
This Note may not be assigned except in accordance with the Agreement.
[AT&T LATIN AMERICA CORP.
By:
---------------------------------------
Title:
-------------------------------------
[BORROWING SUBSIDIARY
By:
---------------------------------------
Title:
-------------------------------------
2
[Customary Legends, Witnesses, etc. to be added to comply with local law
of any Borrowing Subsidiary]
3
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
TRANCHE AMOUNT DRAWN AMOUNT DRAWN AMOUNT REPAID [COMMITMENT AVAILABLE]
DATE (ADVANCE) (INTEREST LOAN)
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
US$___________
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
------------------------ ------------ ---------------------- --------------------- ---------------------- ------------------------
EXHIBIT C
WARRANT AGREEMENT
