1
EXHIBIT 4.3
FORM OF CREDIT FACILITY AGREEMENT
================================================================================
CREDIT FACILITY AGREEMENT
$100,000,000
among
GLOBAL CARD HOLDINGS INC.
as Lender
and
AT&T LATIN AMERICA CORP.
as Borrower
and
NETSTREAM TELECOM LTDA.
As a Borrowing Subsidiary
and
KEYTECH LD S.A.
As a Borrowing Subsidiary
Dated as of [________ __], 2000
----------------------------------
================================================================================
2
TABLE OF CONTENTS
PAGE
----
1. LOANS ..............................................................1
2. PROCEDURES FOR ADVANCES OF LOANS........................................1
3. REPAYMENT; REDUCTION OF AGGREGATE COMMITMENT............................2
4. NOTES ..............................................................4
5. INTEREST ..............................................................4
6. USE OF PROCEEDS.........................................................5
7. RANKING OF OBLIGATIONS..................................................5
8. COLLATERAL..............................................................5
9. REPRESENTATIONS AND WARRANTIES OF THE BORROWER..........................6
10. COVENANTS:..............................................................8
11. EVENTS OF DEFAULT......................................................12
12. REMEDIES UPON DEFAULT, ETC.............................................13
13. WITHHOLDING............................................................14
14. INCREASED COSTS........................................................15
15. INDEMNITIES............................................................15
16. CHANGE IN MARKET CONDITIONS............................................17
17. DEFINITIONS............................................................17
18. APPLICABLE LAW/SUBMISSION TO JURISDICTION..............................22
19. ASSIGNMENT.............................................................22
20. COUNTERPARTS...........................................................22
Schedule A List of Borrowing Subsidiaries
Exhibit A Form of Borrowing Notice
Exhibit B Form of Note
3
Credit Facility Agreement, dated as of July __, 2000 ("AGREEMENT"),
among Global Card Holdings Inc., a Delaware corporation (the "LENDER"), AT&T
Latin America Corp., a Delaware corporation (the "BORROWER") and each Person
listed on Schedule A hereto (each, a "BORROWING SUBSIDIARY").
RECITALS
A. The Borrower has requested the Lender to make loans available to
the Borrower and the Borrowing Subsidiaries in one or more drawdowns in an
aggregate principal amount not exceeding $100,000,000 (such amount, as reduced
hereunder from time to time, the "AGGREGATE COMMITMENT"); and
B. The Lender is willing to make loans to the Borrower and/or one or
more of the 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 as follows:
1. LOANS
Subject to the terms and conditions of this Agreement, the Lender agrees
to make one or more loans hereunder (each, a "LOAN") to the Borrower
and/or the Borrowing Subsidiaries from time to time during the period from
the date of this Agreement 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 Loans shall not
exceed the Aggregate Commitment at any time. The Borrowing Subsidiaries
listed on Schedule A may be changed from time to time as agreed by Lender
and Borrower provided that any Person added to such list becomes a party
to this Agreement.
2. PROCEDURES FOR ADVANCES OF LOANS
(a) REQUESTS FOR BORROWING. The Borrower shall give the Lender a
notice of each Loan in the form of Exhibit A (a "BORROWING
NOTICE"), duly executed by its Chief Executive Officer or
Chief Financial Officer, 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 $2,000,000
or an integral multiple of $1,000,000 in excess thereof (not
to exceed, together with any outstanding Loans, the Aggregate
Commitment), (II) the borrowing date of such Loan, which
shall be a Business Day, (III) the name of any Borrowing
4
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 Business Plan. 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 Lender 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 Lender 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, Lender may, in its 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 Lender and the Borrower, which date,
except as otherwise agreed by Lender, 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 Notice if the relevant Borrowing Subsidiary is
domiciled in Peru, Argentina or Chile.
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 July ___,
2002, or, if FirstCom Corporation has merged with a subsidiary
2
5
of AT&T Latin America, the second annual anniversary of the
date of consummation of such merger (or if such date is not a
Business Day, the next succeeding Business Day), together with
accrued interest through such date.
(b) REDUCTION OF AGGREGATE COMMITMENT/MANDATORY PREPAYMENT. (i)
The amount of the Aggregate Commitment shall be reduced
automatically by the amount of the aggregate net cash proceeds
from any issuance by the Borrower or any Subsidiary from time
to time of (X) Indebtedness, other than Permitted
Indebtedness, or (Y) equity securities or similar interests,
other than in connection with the exercise of stock options by
employees pursuant to an authorized plan of such Borrower or
Subsidiary.
(ii) If at any time, the aggregate amount of outstanding 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 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 exceeds the Aggregate Commitment.
(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 interest on the
amount prepaid through the date of prepayment, PROVIDED that
the Borrower shall give the Lender 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 Lender, Borrower or any
Borrowing Subsidiary or in the interpretation or application
thereof occurring after the date of this Agreement shall make
it unlawful for the Lender to make or maintain any Loan, (i)
the Lender 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 Lender.
(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 Section 11.
3
6
(f) PAYMENT IN U.S. DOLLARS. Any payment under this Agreement or
the Notes shall be in U.S. Dollars.
4. NOTES
The Borrower's or any Borrowing Subsidiary's obligation to pay the
principal of and interest on each Loan shall be evidenced by a note
payable to the Lender (a "NOTE"), which shall (I) be dated on the date of
borrowing of such Loan, (II) be in the stated principal amount set forth
in the corresponding Borrowing Notice, (III) bear interest as provided in
Section 5, (iv) be payable in Dollars to the order of the Lender, (V) be
duly executed by a duly authorized officer of the Borrower or the relevant
Borrowing Subsidiary, and (VI) be in the form of Exhibit B with blanks
completed in conformity herewith and therewith. The Borrower shall
deliver, or cause to be delivered, to the Lender a duly executed Note with
respect to each Loan not later than the date on which such Loan is
disbursed.
5. INTEREST
(a) INTEREST RATE. Subject to the provisions of this Section 5,
the outstanding principal amount of each Loan shall bear
interest at a rate per annum equal to the LIBOR Rate plus the
Margin as set forth below.
(b) INTEREST PERIODS. The Interest Period (the "INTEREST PERIOD")
for each Loan shall be a period of three months, PROVIDED
that:
(i) the initial Interest Period shall commence on the
next succeeding date after the date of disbursement,
and each subsequent Interest Period shall commence on
the next succeeding date after the date on which the
next preceding Interest Period expires; and
(ii) if any Interest Period would otherwise expire on a
date that is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day.
(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
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.
4
7
(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 and working capital requirements, (II) to
pay cash interest, and (III) to fund operating costs.
7. RANKING OF OBLIGATIONS.
So long as any Loan or any portion thereof is outstanding under this
Agreement, the payment obligations of the Borrower or any Borrowing
Subsidiary with respect thereto will at all times rank at least equally
and ratably in all respects with all present and future unsecured
Indebtedness of such Person from time to time outstanding except for such
unsecured Indebtedness as would, by virtue only of the operation of law,
be preferred in the event of the winding-up of the Borrower or any such
Borrowing Subsidiary, as the case may be.
8. COLLATERAL.
(a) PROVISION OF SECURITY. Upon the request of the Lender, which
request may be made in the Lender's sole discretion at any
time, including upon the granting of any security by Borrower
or its Subsidiaries to any other lender, the Borrower shall,
and shall cause each of its Subsidiaries as requested by the
Lender to:
(i) pledge in favor of the Lender or its designee or
agent all of the shares or other equity interests
owned by it in any Subsidiary to secure the
obligations of Borrower and Borrowing Subsidiaries
hereunder; and/or
(ii) grant to the Lender or its designee or agent a
security interest over any tangible or intangible
assets of the Borrower or any Subsidiary to secure
the obligations of Borrower and Borrowing
Subsidiaries hereunder.
(b) SECURITY ARRANGEMENTS. If the Lender shall have requested the
Borrower or any Subsidiary to provide a pledge of shares or
grant of a security interest over assets, the Borrower shall,
and shall cause the relevant Subsidiary or Subsidiaries to:
5
8
(i) execute and deliver all such documents and
instruments, and make all filings, as are reasonably
necessary to create in favor of the Lender or its
designee or agent a valid and enforceable security
interest over the property to be pledged or given as
security; and
(ii) deliver to the Lender an opinion or opinions of
counsel, reasonably acceptable to the Lender, as to
the validity and enforceability of the pledge or
security interest in the jurisdiction in which it is
made or granted.
9. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. 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 Lender 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 such
Borrowing Subsidiary, as the case may be. This Agreement has
been duly executed and delivered by the Borrower and each
Borrowing Subsidiary and constitutes 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, reasonably be expected
6
9
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.
(h) PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor
any of the Subsidiaries is a "holding company" or an
7
10
"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 BUSINESS PLAN. Prior to the beginning of each fiscal
year of the Borrower, the Borrower shall deliver to Lender an
annual business plan with respect to the Group (the "BUSINESS
PLAN"), 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 month in such year.
Borrower shall promptly provide to Lender an updated Business
Plan, approved by the Board of Directors of Borrower, upon any
material change to the Business Plan most recently delivered
to Lender.
(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 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
8
11
Reserve Board. If requested by the Lender, the Borrower and
each Subsidiary will furnish to the Lender 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
Lender 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
Lender 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 Lender.
(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.
(g) LIMITATIONS ON INDEBTEDNESS. The Borrower shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly,
create, incur, assume or permit to remain outstanding any
Indebtedness except the following ("PERMITTED INDEBTEDNESS"):
(i) Indebtedness under Excluded Facilities in an
aggregate principal amount outstanding that does not
exceed 110% of the amount (in Dollars or Dollar
9
12
Equivalents) of the Indebtedness provided for in the
Business Plan most recently approved by the board of
directors of the Borrower;
(ii) Indebtedness of the Borrower to any Subsidiary, or
Indebtedness of any Subsidiary to the Borrower or any
other Subsidiary;
(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; and
(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.
(h) LIMITATIONS ON INVESTMENTS. The Borrower shall not, and shall
not permit any Subsidiary to, purchase, own, invest in or
otherwise acquire, directly or indirectly, any capital stock,
interests in any partnership or joint venture, evidence of
indebtedness or other obligation or security, substantially
all or a material portion of the business or assets of any
other Person or any other investment or interest whatsoever in
any other Person, or make or permit to exist, directly or
indirectly, any loans, advances or extensions of credit to, or
any investment in cash or by delivery of property in, any
Person (each of the foregoing, an "INVESTMENT"), or enter
into, directly or indirectly, any commitment or option in
respect of any Investment except:
(i) Permitted Investments;
(ii) Investments in the Borrower or its Subsidiaries; and
(iii) other Investments not exceeding $5,000,000 (or the
Dollar Equivalents) in the aggregate.
(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) Permitted Liens; and
10
13
(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 the Dollar Equivalents) in
the aggregate;
(III) PROVIDED that 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 such
Person's Subsidiaries owned by such Person.
(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;
(iv) the transfer by any Subsidiary of any of its property
to any other Subsidiary or to the Borrower; and
(v) other Asset Sales not exceeding $5,000,000 (or the
Dollar Equivalents) in the aggregate.
(k) CAPITAL EXPENDITURES. The Borrower shall not, and shall not
permit any Subsidiary to, make any Capital Expenditure in any
month that would cause the aggregate of all Capital
Expenditures of Borrower in such month to exceed an amount
equal to 110% of the level of Capital Expenditures of Borrower
provided for in the most recently delivered Business Plan with
respect to such month.
(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
11
14
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.
11. EVENTS OF DEFAULT.
The Events of Default in this Agreement are:
(a) 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) 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) 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 Lender (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 the
Dollar Equivalents) 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 the Dollar Equivalents) 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
12
15
(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 $3,000,000 (or the Dollar
Equivalents) 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 Business Plan; 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.
12. REMEDIES UPON DEFAULT, ETC.
(a) 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
13
16
automatically become due and payable, or (Y) upon the
occurrence of any other Event of Default described in Section
11, the Lender may at anytime at its option, by demand in
writing to the Borrower, declare the whole amount of the
outstanding Loan to be immediately due and payable.
(b) 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. 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 Lender 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 Lender in
exercising any right, power or remedy shall operate as a
waiver thereof or otherwise prejudice the Lender's rights,
powers or remedies. No right, power or remedy conferred by
this Agreement upon the Lender 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 Lender 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.
13. WITHHOLDING.
(a) Except as otherwise required under applicable law, all
payments made by the Borrower or any Borrowing Subsidiary
hereunder will be made free and clear of, and without
deduction or withholding for or on account of, any present or
future Taxes. If any such Taxes are required to be deducted or
withheld, the Borrower shall make the required deduction and
will timely remit to the relevant tax authority the amount so
deducted. The Borrower will furnish to the Lender, within 15
days after the date the payment of any withholding Taxes in
14
17
respect of payments hereunder is due pursuant to applicable
law, certified copies of tax receipts (if available)
evidencing such payment by the Borrower or the applicable
Borrowing Subsidiary.
(b) The Borrower and each Borrowing Subsidiary shall pay, and
shall jointly and severally indemnify and hold harmless the
Lender and reimburse the Lender upon its written request, for
any bank charges, capital circulation charges, stamp,
transfer, court or documentary taxes, CMPF or other financial
transaction taxes or any other excise or property taxes,
charges or similar levies imposed by any jurisdiction in
connection with the execution, delivery, enforcement or
performance of this Agreement.
14. INCREASED COSTS.
If the Lender determines that, as a result of the introduction of or any
change in, or in the interpretation or application of, any law 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 the 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 Lender from time to
time.
15. INDEMNITIES.
(a) MISCELLANEOUS INDEMNITIES. The Borrower and each Borrowing
Subsidiary shall jointly and severally on demand indemnify the
Lender against any funding or other cost, loss, expense or
liability sustained or incurred by it as a result of:
15
18
(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
(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 the 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.
16
19
(c) INDEMNITIES SEPARATE. Each of the Indemnities in this
Agreement constitutes a separate and independent obligation
from the other obligations in this Agreement, shall give rise
to a separate and independent cause of action, shall apply
irrespective of any indulgence granted by the Lender 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 Lender is
unable to determine the LIBOR Rate, the Lender shall promptly
notify the Borrower and the Loan shall not be made.
(b) NEGOTIATION. The Borrower and the Lender shall then negotiate
until not more than 25 days after such determination by the
Lender with a view to agreeing 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 Lender 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 Lender (expressed as a
rate per annum) of funding the Loan during that Interest
Period by whatever means it determines to be appropriate. The
Lender shall certify that cost to the Borrower as soon as
practical after the Lender's determination of the event in
question (but in any event at least two Business Days before
the end of that Interest Period).
17. DEFINITIONS.
"AFFILIATE" means, with respect to any Person, a Person that directly or
indirectly through one or more intermediaries, controls, is controlled by,
or is under common control with, the first Person. "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.
17
20
"ASSET SALE" has the meaning set forth in Section 10(j).
"BORROWER" has the meaning set forth in the Preamble hereto.
"BORROWING NOTICE" has the meaning set forth in Section 2(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 Xxx Xxxx, Xxx Xxxx xx
Xxxxxx, Xxxxxx Xxxxxxx.
"BUSINESS PLAN" has the meaning set forth in Section 10(a).
"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.
"DOLLARS" and "$" mean lawful currency of the United States of America.
"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.
"EVENT OF DEFAULT" means one of the events mentioned in Section 11.
"EXCLUDED FACILITIES" means (I) local credit facilities of Subsidiaries,
denominated in Dollars or in local currency or units, primarily to finance
working capital requirements, and (II) Vendor Financing Facilities.
"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 all indebtedness of such
Person for borrowed money or for the deferred purchase price of property
or services (other than trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices),
obligations under capital leases appearing or required to appear on the
balance sheet of such Person and any other indebtedness of such Person
which is evidenced by a note, bond, debenture or similar instrument.
18
21
"INDEMNIFIED PARTIES" has the meaning set forth in Section 15(b).
"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.
"LIBOR RATE" has the meaning set forth in Section 5(e).
"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" has the meaning set forth in Section 1.
"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 determined by the Lender.
"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 18.
"NOTE" has the meaning set forth in Section 4.
"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 organized in
the United States of America having capital, surplus and undivided profits
as of December 31, 1999 of at least $1,000,000,000 and having a commercial
paper rating of A-1 or P-1;
19
22
(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) advances to officers and employees for travel and other business
expenses.
"PERMITTED LIENS" means:
(i) Liens securing any Loan;
(ii) Liens to secure obligations under any of the 14% Senior Notes due
2007 issued by FirstCom Corporation remaining outstanding after the date
hereof.
(ii) Liens in favor of the Borrower;
(iii) Liens on property of any Person existing at the time such Person
is acquired by or merged or consolidated with any member of the Group,
PROVIDED that such Liens were not created in contemplation of such
acquisition, merger or consolidation and do not extend to any assets other
than those of such Person;
(iv) statutory Liens of landlords and statutory Liens of carriers,
warehousemen, mechanics and materialmen incurred in the ordinary course of
business;
(v) Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or similar obligations incurred in the
ordinary course of business;
(vi) Liens in connection with Vendor Financing Facilities;
(vii) Liens for Taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings; or
(vii) renewals or replacements of any Liens referred to above.
20
23
"PERSON" means any individual, corporation, company, limited liability
company, association, partnership, trust, estate, governmental authority
or other entity.
"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.
"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 Lender.
"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.
"TAX" or "TAXES" means any income, franchise, gross receipts, sales,
rental, use, value-added, turnover, excise, property, user, capital, doing
business, transfer, stamp or other taxes.
"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 pursuant to Section 3(g).
"VENDOR FINANCING FACILITY" means any credit facilities of any member of
the Group to finance the purchase or use of equipment, software and/or
services provided by the vendors thereof, PROVIDED such facility is not
secured by any assets other than the assets acquired from such vendor or
vendors by Borrower or its Subsidiaries in connection with such facility
as permitted by this Agreement.
21
24
18. 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.
19. ASSIGNMENT.
None of the parties hereto may assign or otherwise transfer any of its
rights under this Agreement, except that Lender may assign this Agreement,
and all or any portion of any Note or Notes, to an any Affiliate of AT&T
Corp.
20. 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 on 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.
22
25
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 Global Card Holdings Inc.
-----------------------
Name:
Witness: By:
---------------------- -----------------------
Name: Name:
Title:
Witness AT&T Latin America Corp.
-----------------------
Name:
Witness: By:
---------------------- -----------------------
Name: Name:
Title:
Witness Netstream Telecom Ltda.
-----------------------
Name:
Witness: By:
---------------------- -----------------------
Name: Name:
Title:
Witness Keytech LD S.A.
-----------------------
Name:
Witness: By:
---------------------- -----------------------
Name: Name:
Title:
23
26
Schedule A
Netstream Telecom Ltda.
Keytech LD S.A.
27
FORM OF BORROWING REQUEST
To: Global Card Holdings Inc.
The undersigned, AT&T Latin America Corp. (the "BORROWER"), refers to
the Credit Facility Agreement, dated as of [_________ __], 2000 (as amended,
supplemented or otherwise modified from time to time, the "AGREEMENT"), among
Global Card Holdings Inc., (the "LENDER"), 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: $______________________
(b) Borrowing Breakdown:
---------------------------------- ---------------------------- --------------------------------
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
-----------------
---------------------------------- ---------------------------- --------------------------------
28
(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: ___________________
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: _______________
----------------------------------------- -------------------------------------
29
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 Business Plan most recently delivered to
the Lender.
AT&T Latin America Corp.
By:
----------------------------
Name:
Title: (CEO or CFO)
Date:
--------------------
30
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 Global Card Holdings Inc. ("LENDER") on [July
__, 2000 or, if FirstCom Corporation has merged with a subsidiary of AT&T Latin
America, the second annual anniversary of the date of consummation of such
merger (or if such date is not a Business Day, the next succeeding Business
Day)] in lawful money of the United States of America to an account specified in
writing by Lender, the principal sum of [ ] together with interest at the rate
per annum specified in the Credit Facility Agreement, dated [ ], 2000 among
Lender, 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.
This Note represents a Loan under the Agreement and is governed by the
terms thereof, including, without limitation, with respect to the rights of
Lender in the case of any security that may be provided to Lender by the
Borrower or any Borrowing Subsidiary from time to time pursuant to Section 8 of
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.
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:___________________________________________ ]
[Customary Legends, Witnesses, etc. to be added to comply with local
law of any Borrowing Subsidiary]
