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EXHIBIT 4.8
EXECUTION COPY
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PROCEEDS PLEDGE AND ESCROW AGREEMENT
by and between
INTERAMERICAS COMMUNICATIONS CORPORATION
and
STATE STREET BANK AND TRUST COMPANY, N.A.
as Trustee
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Dated: October 27, 1997
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PROCEEDS PLEDGE AND ESCROW AGREEMENT
THIS PROCEEDS PLEDGE AND ESCROW AGREEMENT (this "Agreement"),
dated as of October 27, 1997, is by and between INTERAMERICAS COMMUNICATIONS
CORPORATION (the "Company") and State Street Bank and Trust Company, N.A., as
trustee under the Indenture referred to below (the "Trustee").
RECITALS
A. The Notes. Pursuant to that certain Indenture (the "Indenture"),
dated as of October 27, 1997, by and between the Company and the Trustee, the
Company will issue $150,000,000 in aggregate principal amount of 14% Series A
Senior Notes due 2007 (collectively, the "Series A Notes"). Pursuant to a
Registration Rights Agreement (the "Registration Rights Agreement"), dated as of
October 27, 1997, by and between the Company and UBS Securities LLC, the Company
will file with the Securities and Exchange Commission under the circumstances
set forth therein a registration statement under the Securities Act of 1933, as
amended, relating to the Company's 14% Series B Senior Notes due 2007 (the
"Series B Notes" and, together with the Series A Notes, the "Notes").
Immediately after receipt of payment for the Series A Notes (the "Deposit
Time"), the Company will deposit from the net proceeds from the sale of the
Series A Notes (i) $57,213,000.00 (the "Interest Reserve Funds") and (ii)
$69,300,000 (the "Collateral Funds" and, together with the Interest Reserve
Funds, the "Escrow Funds"), into a segregated cash collateral trust account with
the Trustee at its office at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, in the name of
State Street Bank and Trust Company, N.A., as Trustee, "Interest Reserve and
Collateral Account for InterAmericas Communications Corporation" (such account,
including the Interest Reserve Subaccount and the Collateral Subaccount referred
to below, is herein referred to as the "Escrow Account"). The Trustee shall
place the Interest Reserve Funds into a subaccount of the Escrow Account (the
"Interest Reserve Subaccount") and the Collateral Funds into a separate
subaccount of the Escrow Account (the "Collateral Subaccount"). The Escrow
Account (including the Interest Reserve Subaccount and the Collateral
Subaccount) and all balances and investments from time to time therein shall be
under the sole control and dominion of the Trustee, for the benefit of the
Trustee and the ratable benefit of the Holders of the Notes.
B. Purpose. The parties hereto desire to set forth their agreement with
regard to the administration of the Escrow Account, the creation of a security
interest in the Collateral (as defined herein) and the conditions upon which
funds will be released from the Escrow Account.
C. Definitions. Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Indenture.
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AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Security Interest.
(a) Pledge and Assignment of Collateral. The Company hereby
irrevocably pledges, assigns and sets over to the Trustee, and grants to the
Trustee, for the benefit of the Trustee and the ratable benefit of the Holders
of the Notes, a first priority continuing security interest in all of the
Company's right, title and interest in and to all of the following, whether now
owned or existing or hereafter acquired or created (collectively, the
"Collateral"):
(i) the Escrow Account, which consists of two subaccounts:
the Interest Reserve Subaccount and the Collateral Subaccount;
(ii) all funds from time to time held in the Escrow Account,
including, without limitation, the Escrow Funds and all certificates
and instruments, if any, from time to time representing or evidencing
the Escrow Account or the Escrow Funds;
(iii) all investments of funds in the Escrow Account
(including, without limitation, all Allowable Investments (as defined
herein)), whether the same shall constitute Government Securities (as
defined herein), certificated securities, uncertificated securities,
security entitlements, investment property, instruments, general
intangibles or otherwise and whether held by or registered in the name
of the Trustee or otherwise and all certificates and instruments, if
any, from time to time representing or evidencing such investments;
(iv) all notes, certificates of deposit, deposit accounts,
checks and other instruments from time to time hereafter delivered to
or otherwise possessed by the Trustee, for or on behalf of the Company,
in substitution for or in addition to any or all of the then existing
Collateral;
(v) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the then
existing Collateral; and
(vi) all proceeds of any of the foregoing, including, without
limitation, cash proceeds.
(b) Secured Obligations. This Agreement secures the due and
punctual payment and performance of all Obligations and other obligations and
indebtedness of the Company, whether now or hereafter existing, under the Notes
and the Indenture including, without limitation, interest, premium and
Liquidated Damages, if any, accrued on the Notes after the commencement of a
bankruptcy, reorganization or similar proceeding involving the Company
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to the extent permitted by applicable law (collectively, the "Secured
Obligations").
(c) Delivery of Collateral. All certificates or instruments,
if any, representing or evidencing the Collateral shall be held by or on behalf
of the Trustee pursuant hereto and shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of transfer or
assignments in blank, all in form and substance reasonably satisfactory to the
Trustee. All securities in uncertificated or book-entry form and all security
entitlements, if any, in each case representing or evidencing the Collateral
shall be registered in the name of the Trustee (or any of its nominees) as the
registered owner thereof by book-entry or as otherwise appropriate so as to
properly identify the interest of the Trustee therein. In addition, the Trustee
shall have the right, at any time following the occurrence of an Event of
Default, to transfer to or to register in the name of the Trustee or any of its
nominees any or all other Collateral. Except as otherwise provided herein, all
Collateral shall be deposited and held in the Escrow Account. The Trustee shall
have the right at any time to exchange certificates or instruments representing
or evidencing all or any portion of the Collateral for certificates or
instruments of smaller or larger denominations in the same aggregate amount.
(d) Further Assurances. Prior to, contemporaneously herewith,
and at any time and from time to time hereafter, the Company will, at the
Company's expense, execute and deliver to the Trustee such other instruments and
documents, and take all further action as it deems necessary or advisable or as
the Trustee may reasonably request including an Opinion of Counsel, upon which
the Trustee may conclusively rely, to confirm or perfect the security interest
of the Trustee granted or purported to be granted hereby or to enable the
Trustee to exercise and enforce its rights and remedies hereunder with respect
to any Collateral and the Company will take all necessary action to preserve and
protect the security interest created hereby as a first priority, perfected Lien
and encumbrance upon the Collateral. The Company will pay all costs incurred in
connection with any of the foregoing.
(e) Establishing and Maintaining Accounts. So long as this
Agreement is in full force and effect:
(i) the Company shall establish and maintain the Escrow
Account with the Trustee in New York, New York. The Collateral shall at
all times be subject to the sole dominion and control of the Trustee,
which shall hold the Collateral and administer the Escrow Account
subject to the terms and conditions of this Agreement. The Company
shall have no right of withdrawal from the Escrow Account nor any other
right or power with respect to the Collateral, except as expressly
provided herein; and
(ii) it shall be a term and condition of the Escrow Account,
notwithstanding any term or condition to the contrary in any other
agreement relating to the Escrow Account and except as otherwise
provided by the provisions of Articles 3 and 4 of this Agreement, that
no amount in the Escrow Account (including, without limitation,
interest on or other proceeds of the Escrow Account or on any Allowable
Investments held therein) shall be paid or released to or for the
account of, or withdrawn by or for the account of, the Company or any
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other person or entity other than the Trustee or its designated agent.
(f) Transfers and Other Liens. Until termination of this
Agreement pursuant to Section 9, the Company agrees that it will not (i) sell,
assign (by operation of law or otherwise) or otherwise dispose of, or grant any
option with respect to, any of the Collateral or (ii) create or permit to exist
any Lien upon or with respect to any of the Collateral, except for the security
interest under this Agreement.
(g) Trustee Appointed Attorney-in-Fact. In addition to all of
the powers granted to the Trustee pursuant to Article 6 of the Indenture, the
Company hereby irrevocably appoints the Trustee as the Company's
attorney-in-fact, coupled with an interest, with full authority in the place and
stead of the Company and in the name of the Company or otherwise, from time to
time in the Trustee's discretion to take any action and to execute any
instrument which the Trustee may deem necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation, to receive, endorse
and collect all instruments made payable to the Company representing any
interest payment, dividend or other distribution in respect of the Collateral or
any part thereof and to give full discharge for the same, and the expenses of
the Trustee incurred in connection therewith shall be payable by the Company.
(h) Trustee May Perform. Without limiting the authority
granted under Section 1(g) and except with respect to the failure of the Company
to deliver investment instructions, which shall be governed by Section 2(c)
hereof, if the Company fails to perform any agreement contained herein, the
Trustee may, but shall not be obligated to, itself perform, or cause performance
of, such agreement, and the expenses of the Trustee incurred in connection
therewith shall be payable by the Company. In the event that the Trustee
performs pursuant to this Section 1(h), the Company shall indemnify the Trustee
in the manner provided in Section 7.07 of the Indenture.
2. Investment and Liquidation of Funds in Escrow Account. Funds
deposited in the Escrow Account shall be invested and reinvested by the Trustee
on the following terms and conditions:
(a) Interest Reserve Subaccount. The Company shall immediately
deposit the Interest Reserve Funds into the Interest Reserve Subaccount. Funds
deposited in the Interest Reserve Subaccount may, subject to the provisions of
Articles 2, 3 and 4 of this Agreement, be invested and reinvested by the
Trustee, at the written direction of the Company, in direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States of
America is pledged ("Government Securities"); provided, however, that the
maturity dates of the Government Securities in which the Interest Reserve Funds
are invested and reinvested shall be structured so as to ensure sufficient funds
are available to make the payments of interest on the Notes which the Interest
Reserve Funds and related Government Securities have been pledged to secure. For
the avoidance of doubt, all Government Securities in which the Interest Reserve
Funds are invested and reinvested shall be held by the Trustee in the Interest
Reserve Subaccount of the Escrow Account as part of the Collateral hereunder.
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(b) Collateral Subaccount. The Company shall immediately
deposit the Collateral Funds into the Collateral Subaccount. Funds deposited in
the Collateral Subaccount may, subject to the provisions of Articles 2, 3 and 4
of this Agreement, be invested and reinvested by the Trustee, at the written
direction of the Company, in (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than six
months from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any domestic commercial bank having
capital and surplus in excess of $500 million and a Xxxxxxxx Bankwatch, Inc.
rating of AB@ or better, (iv) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clauses (ii)
and (iii) above entered into with any financial institution meeting the
qualifications specified in clause (iii) above and (v) commercial paper having
the highest rating obtainable from Xxxxx'x Investors Service, Inc. or Standard &
Poor's Corporation and in each case maturing within six months after the date of
acquisition (the investments set forth in clauses (i), (ii), (iii) and (iv) of
this Section 2(b) are collectively referred to herein as "Cash Equivalents" and
the investments allowed under Sections 2(a) and 2(b) of this Agreement are
referred to herein as "Allowable Investments"). For the avoidance of doubt, all
Cash Equivalents in which the Collateral Funds are invested and reinvested shall
be held by the Trustee in the Collateral Subaccount of the Escrow Account as
part of the Collateral hereunder.
All Allowable Investments made pursuant to this Section 2(b)
shall mature on or prior to the Special Offer to Purchase Payment Date.
(c) Investment Instructions.
(i) If the Company fails to give written investment
instructions to the Trustee by 12:00 noon (New York time) on any
Business Day on which there is uninvested cash and/or maturing
Government Securities in the Interest Reserve Subaccount, the Trustee
is hereby unconditionally instructed and authorized and directed to
invest any such cash or the proceeds of any maturing Government
Securities in the Interest Reserve Subaccount in Government Securities
maturing on the next Business Day. The Company's failure to give such
investment instructions shall not constitute a default or an event of
default hereunder.
(ii) If the Company fails to give written investment
instructions to the Trustee by 12:00 noon (New York time) on any
Business Day on which there is uninvested cash and/or maturing Cash
Equivalents in the Collateral Subaccount, the Trustee is hereby
unconditionally instructed and authorized and directed to invest any
such cash or the proceeds of any maturing Cash Equivalents in the
Collateral Subaccount in Cash Equivalents maturing on the next Business
Day. The Company's failure to give such investment instructions shall
not constitute a default or an event of default hereunder.
(d) Interest. All interest earned on funds invested in
Allowable Investments shall be held in the applicable subaccount of the Escrow
Account and reinvested in accordance with the terms hereof and will be subject
to the security interest granted hereunder to the Trustee.
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(e) Limitation of Trustee's Liability. In no event shall the
Trustee have any liability to the Company or any other Person for investing the
funds from time to time in the Escrow Account in accordance with the provisions
of this Article 2, regardless of whether greater income or a higher yield could
have been obtained had the Trustee invested such funds in different Allowable
Investments, or for any loss (including breakage costs or loss of principal)
associated with the sale or liquidation of Allowable Investments in accordance
with the terms of this Agreement, in each case other than with respect to gross
negligence or willful misconduct of the Trustee.
(f) Liquidation of Funds. In liquidating any Allowable
Investments in accordance with Articles 3 and 4 of this Agreement, the Company
shall direct the Trustee as to which Allowable Investments shall be liquidated.
3. Interest Payments. Pursuant to Section 1 of the Notes, the Company
is obligated to make payments of interest on the Notes on the dates and at the
rates specified in the Notes. Payment of the first six (6) scheduled interest
payments due on the Notes may be made (i) from amounts held in the Interest
Reserve Subaccount in accordance with the procedures set forth in subsection (a)
below or (ii) from other sources of funds available to the Company, as
anticipated in subsection (b) below, or from any combination of (i) and (ii)
above; provided that nothing herein shall be construed as limiting the Company's
obligation to make all interest payments due on the Notes at the times and in
the amounts required by the Notes, which obligation shall be absolute and
unconditional.
(a) Payment of Interest. Not later than five (5) Business Days
prior to the date of any of the first six (6) scheduled interest payments due on
the Notes, the Company shall, pursuant to a duly completed and executed
Certificate of Release in the form of Exhibit A hereto, direct the Trustee to
transfer from the Interest Reserve Subaccount to the Paying Agent funds
necessary to provide for payment in full (or, if the Company intends to make a
portion of such interest payment with funds in the Interest Reserve Account and
the remainder of such interest payment with funds other than those in the
Interest Reserve Subaccount, such portion) of the next scheduled interest
payment on the Notes. If the Company does not intend to utilize the funds in the
Interest Reserve Subaccount to make any such interest payment in full, then the
Company shall comply with Section 3(b) below. Upon receipt of such Certificate
of Release, the Trustee will transfer to the Paying Agent for payment to the
Holders of Notes the amount set forth in the applicable Certificate of Release.
(b) Release of Funds to the Company Due to Direct Payment of
Interest by the Company. If the Company makes any of the first six (6) scheduled
interest payments on the Notes or a portion of any such scheduled interest
payment on the Notes from a source of funds other than the Interest Reserve
Subaccount ("Company Funds"), the Company may, after payment in full of such
scheduled interest payment, direct the Trustee, pursuant to a duly completed and
executed Certificate of Release in the form of Exhibit B hereto, to release to
the Company or at the direction of the Company an amount of funds from the
Interest Reserve Subaccount less than or equal to the amount of Company Funds so
expended. Upon receipt of such Certificate of Release, the Trustee shall pay
over to the Company the requested amount.
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(c) Release of Funds to Company Due to Overfunding. If at any
time the amount of Collateral in the Interest Reserve Subaccount exceeds 125% of
the amount sufficient, in the written opinion of a nationally recognized firm of
independent public accountants selected by the Company and furnished to the
Trustee, to provide for payment in full of the first six (6) scheduled interest
payments due on the Notes (or, in the event an interest payment or payments have
been made in full, an amount sufficient to provide for payment in full of any
then remaining interest payment, up to and including the sixth scheduled
interest payment), the Company may, pursuant to a duly completed and executed
Certificate of Release in the form of Exhibit B hereto, direct the Trustee to
release any such overfunding to it.
(d) No Duplicate Payments. With respect to the conditions
permitting the release to the Company of any funds in the Interest Proceeds
Subaccount pursuant to Sections 3(b) or 3(c) above, the Company shall not
request, and the Trustee shall not make, any full or partial duplicate payment
thereunder.
(e) Termination of Security Interest. Upon payment in full of
the first six (6) scheduled interest payments on the Notes, the security
interest evidenced by this Agreement in any Collateral remaining in the Interest
Reserve Subaccount will terminate and be of no further force and effect.
Furthermore, upon the release of any Collateral from the Interest Reserve
Subaccount in accordance with the terms of this Agreement, whether upon release
of such Collateral to Holders as payment of interest on the Notes, to the
Company pursuant to Sections 3(b) or 3(c) or otherwise, the security interest
evidenced by this Agreement in such Collateral so released will terminate and be
of no further force and effect.
4. Disposition of Collateral in Collateral Subaccount Upon Certain
Events.
(a) Release of Collateral Funds for Permitted Expenditures. If
the Company delivers to the Trustee a duly completed and executed Permitted
Expenditures Certificate substantially in the form of Exhibit C hereto, the
Trustee shall, within five (5) Business Days after its receipt of such Permitted
Expenditures Certificate, liquidate such amount of Allowable Investments in the
Collateral Subaccount as may be necessary to obtain in cash the amount requested
in such Permitted Expenditures Certificate. The Permitted Expenditures
Certificate shall be accompanied by a supporting budget or other supporting
documentation reasonably satisfactory to the Trustee detailing the Company's
expected Permitted Expenditures (as defined herein) for the immediately
succeeding three (3) months. Upon receipt of the foregoing, unless a Trust
Officer of the Trustee has actual knowledge that any statement in such Permitted
Expenditures Certificate is untrue (and provided that, after application of the
funds requested in the applicable Permitted Expenditures Certificate, the
Company will be in compliance with Section 6(d) hereof), the Trustee shall
transfer the amount set forth in such Permitted Expenditures Certificate in
immediately available funds in accordance with the terms of such Permitted
Expenditures Certificate.
(b) Special Offer to Purchase. In the event the Company makes
a Special Offer to Purchase pursuant to the terms of the Indenture, the Company
shall, at least five Business Days prior to the Special Offer to Purchase
Payment Date, provide a duly completed
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and executed certificate in the form of Exhibit D hereto (the "Special Offer to
Purchase Certificate") to the Trustee which certificate shall set forth the
Holders and the aggregate principal amount of Notes held by such Holders that
have accepted the Special Offer to Purchase and the amount of Collateral in the
Collateral Subaccount required by the Company to make the payment in connection
with such Special Offer to Purchase (the "Special Offer to Purchase Amount"),
whereupon the Trustee shall, unless a Trust Officer of the Trustee has actual
knowledge that any statement in such Special Offer to Purchase Certificate is
untrue, promptly liquidate an amount of Allowable Investments in the Collateral
Subaccount at least equal to the Special Offer to Purchase Amount by not later
than 12:00 noon (New York time) on the Special Offer to Purchase Payment Date.
The Special Offer to Purchase Amount shall be used (together with other funds of
the Company, if necessary) to purchase the Notes in accordance with the terms
and procedures set forth in Section 4.17 of the Indenture.
(c) Special Mandatory Redemption. In the event the Company is
required to make a Special Mandatory Redemption pursuant to the terms of the
Indenture, the Company shall, at least five Business Days prior to the Special
Mandatory Redemption Date, provide a duly completed and executed certificate in
the form of Exhibit E hereto (the "Special Mandatory Redemption Certificate") to
the Trustee, whereupon the Trustee shall promptly liquidate all Allowable
Investments in the Collateral Subaccount by not later than 12:00 noon (New York
time) on the Special Mandatory Redemption Date. On the Special Mandatory
Redemption Date, the Trustee shall, unless a Trust Officer of the Trustee has
actual knowledge that any statement in such Special Mandatory Redemption
Certificate is untrue, transfer the funds in the Collateral Subaccount necessary
to make such Special Mandatory Redemption (the "Special Mandatory Redemption
Funds") to the Paying Agent for distribution to the Holders of the Notes in
accordance with the terms of the Indenture. Immediately following such transfer,
the Trustee shall transfer all funds and other assets remaining in the
Collateral Subaccount directly to the Company. The Special Mandatory Redemption
Funds shall be used (together with other funds of the Company, if necessary) to
redeem the Notes in accordance with the terms and procedures set forth in
Section 4.16 of the Indenture.
(d) Change of Control Offer. In the event the Company makes a
Change of Control Offer pursuant to the terms of the Indenture, the Company
shall, within five Business Days prior to the Change of Control Payment Date,
provide a duly completed and executed certificate in the form of Exhibit F
hereto (the "Change of Control Offer Certificate") to the Trustee which
certificate shall set forth the Holders and the aggregate principal amount of
Notes held by such Holders that have accepted the Change of Control Offer and
the amount of Collateral in the Collateral Subaccount required by the Company to
make the payment in connection with such Change of Control Offer (the "Change of
Control Offer Amount"), whereupon the Trustee shall, unless a Trust Officer of
the Trustee has actual knowledge that any statement in such Special Mandatory
Redemption Certificate is untrue, promptly liquidate an amount of Allowable
Investments in the Collateral Subaccount necessary to pay such Change of Control
Offer Amount by not later than 12:00 noon (New York time) on the Change of
Control Payment Date. The Change of Control Offer Amount shall be used (together
with other funds of the Company, if necessary) to purchase the Notes in
accordance with the terms and procedures set forth in Section 4.15 of the
Indenture.
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(e) Remaining Collateral Funds. In the event that the
Indenture does not require the Company to make a Special Mandatory Redemption
after the consummation of a Special Offer to Purchase, funds will be released
from the Collateral Subaccount in accordance with this Section 4(e). If the
Company delivers to the Trustee a duly completed and executed Release
Certificate substantially in the form of Exhibit G hereto, the Trustee shall
within five (5) Business Days after its receipt of such Release Certificate,
liquidate such amount of Allowable Investments in the Collateral Subaccount as
may be necessary to obtain in cash the amount requested in such Release
Certificate. Upon receipt of the foregoing, unless a Trust Officer of the
Trustee has actual knowledge that any statement in such Release Certificate is
untrue, the Trustee shall transfer the amount set forth in such Release
Certificate in immediately available funds in accordance with the terms of such
Release Certificate.
(f) Termination of Security Interest. Upon transfer by the
Trustee of the Special Mandatory Redemption Funds to the Paying Agent as set
forth in Section 4(c), the security interest evidenced by this Agreement in the
Collateral in the Collateral Subaccount will terminate and be of no further
force and effect. Furthermore, upon any other release of any Collateral from the
Collateral Subaccount in accordance with the terms of this Agreement, the
security interest evidenced by this Agreement in such Collateral so released
will terminate and be of no further force and effect.
5. Representations and Warranties. The Company hereby represents and
warrants to the Trustee and the Holders of the Notes that:
(a) The execution, delivery and performance by the Company of
this Agreement are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation of the Company or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or result
in the creation or imposition of any Lien on any assets of the Company, except
for the security interests granted under this Agreement.
(b) The Company is the record and beneficial owner of the
Collateral, free and clear of any Lien or claims of any person or entity (except
for the security interests granted under this Agreement). No financing statement
covering the Collateral is on file in any public office other than the financing
statements filed pursuant to this Agreement.
(c) This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or general principles of equity and commercial
reasonableness.
(d) The pledge of the Collateral pursuant to this Agreement
creates a valid and perfected first priority security interest in and to the
Collateral, securing the payment of the Secured Obligations for the benefit of
the Trustee and the ratable benefit of the Holders of Notes, enforceable as such
against all creditors of the Company and any persons purporting to purchase
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any of the Collateral from the Company other than as permitted by the Indenture.
(e) Except as set forth in Section 5(d) above, no consent of
any other Person and no consent, authorization, approval, or other action by,
and no notice to or filing with, any governmental authority or regulatory body
is required either (1) for the pledge by the Company of the Collateral pursuant
to this Agreement or for the execution, delivery or performance of this
Agreement by the Company or (2) for the exercise by the Trustee of the rights
provided for in this Agreement or the remedies in respect of the Collateral
pursuant to this Agreement.
(f) No litigation, investigation or proceeding of or before
any arbitrator or governmental authority is pending or, to the knowledge of the
Company, threatened by or against the Company with respect to this Agreement or
any of the transactions contemplated hereby.
(g) The pledge of the Collateral pursuant to this Agreement is
not prohibited by any applicable law or governmental regulation, release,
interpretation or opinion of the Board of Governors of the Federal Reserve
System or other regulatory agency (including, without limitation, Regulations G,
T, U and X of the Board of Governors of the Federal Reserve System).
6. Covenants. The Company covenants and agrees with the Trustee and the
Holders of Notes from and after the date of this Agreement until the Termination
Date as follows:
(a) The Company (i) will not (A) sell or otherwise dispose of,
or grant any option or warrant with respect to, any of the Collateral or (B)
create or permit to exist any Lien upon or with respect to any of the Collateral
(except for the Lien created pursuant to this Agreement) and (ii) except as
otherwise provided in this Agreement, at all times will be the sole beneficial
owner of the Collateral.
(b) The Company will not (a) enter into any agreement or
understanding that purports to or may restrict or inhibit the Trustee's rights
or remedies hereunder, including, without limitation, the Trustee's right to
sell or otherwise dispose of the Collateral in accordance with the terms of this
Agreement or (b) fail to pay or discharge any tax, assessment or levy of any
nature not later than five days prior to the date of any proposed sale under any
judgement, writ or warrant of attachment with regard to the Collateral.
(c) The Company will use the Collateral Funds released
hereunder only for (i) Permitted Expenditures, (ii) in the event of a Change of
Control, the Change of Control Payment, (iii) in the event of a Special Offer to
Purchase or a Special Mandatory Redemption, the payment of the purchase or
redemption price in connection therewith and (iv) as provided in Section 6(e)
below with respect to Collateral Funds remaining in the Collateral Subaccount
after the consummation of a Special Offer to Purchase when no Special Mandatory
Redemption is required under the Indenture. As used in this Agreement,
"Permitted Expenditures" means (i)(A) the purchase price and related expenses of
any acquisition of (1) long-term assets used or useful in a Permitted Business
or (2) a controlling interest in a Permitted Business (collectively,
"Acquisition Costs") or (B) expenditures by the Company or any Restricted
Subsidiary of the Company directly related to the engineering, design,
construction, installation or development of
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assets and systems used or useful in a Permitted Business ("Systems Costs"), in
each of clauses (A) and (B), in connection with Telecommunications Businesses in
Chile or Peru; (ii) the repayment of Indebtedness of any Restricted Subsidiary;
provided that the commitments with respect thereto in the case of revolving
borrowings are correspondingly reduced and (iii) other general corporate
purposes in an amount not to exceed $20.0 million.
(d) At least 60% of the aggregate amount of Collateral Funds
released from the Collateral Subaccount for Permitted Expenditures shall be used
for the payment of Acquisition Costs or Systems Costs directly related to
Telecommunications Businesses in Peru.
(e) Notwithstanding anything to the contrary in this
Agreement, in the event that the Indenture does not require the Company to make
a Special Mandatory Redemption after the consummation of the Special Offer to
Purchase, the Company shall apply all funds then held in the Collateral
Subaccount and subsequently released to it hereunder, at its option, to the
acquisition of a controlling interest in a Permitted Business, the making of a
capital expenditure or the acquisition of other assets, in each case, in a
Permitted Business or to the reduction of senior Indebtedness of the Company or
Indebtedness of any Restricted Subsidiary of the Company.
7. Remedies upon Default. If any Event of Default shall have occurred
and be continuing:
(a) The Trustee may, without notice to the Company except as
required by law and at any time or from time to time, liquidate all Allowable
Investments and transfer all funds in the Escrow Account to the Paying Agent to
apply such funds in accordance with Section 3.03 of the Indenture.
(b) The Trustee may also exercise in respect of the
Collateral, in addition to the other rights and remedies provided for herein or
in the Indenture or otherwise available to it, all the rights and remedies of a
secured party after a default under the Uniform Commercial Code in effect at
that time in the State of New York (the "Code") (whether or not the Code applies
to the affected Collateral), and may also, without notice except as specified
below, sell the Collateral or any part thereof in one or more parcels at public
or private sale, at any of the Trustee's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as the Trustee may deem
commercially reasonable. The Company agrees that, to the extent notice of sale
shall be required by law, at least ten days' notice to the Company of the time
and place of any public sale or the time after which any private sale is to be
made shall constitute reasonable notification. The Trustee shall not be
obligated to make any sale of Collateral regardless of notice of sale having
been given. The Trustee may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
(c) Any cash held by the Trustee as Collateral and all net
cash proceeds received by the Trustee in respect of any sale or liquidation of,
collection from, or other realization upon all or any part of the Collateral
may, in the discretion of the Trustee, be held by the Trustee as collateral for,
and/or then or at any time thereafter be applied (after payment of
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any costs and expenses incurred in connection with any sale, liquidation or
disposition of or realization upon the Collateral and the payment of any amounts
payable to the Trustee) in whole or in part by the Trustee for the ratable
benefit of the Holders of the Notes against all or any part of the Secured
Obligations in such order as the Trustee shall elect. Any surplus of such cash
or cash proceeds held by the Trustee and remaining after payment in full of all
the Secured Obligations and the costs and expenses incurred by and amounts
payable to the Trustee hereunder or under the Indenture shall be paid over to
the Company or to whomsoever shall be lawfully entitled to receive such surplus.
For the avoidance of doubt, if any Event of Default shall have
occurred and be continuing, the Trustee shall not release any Collateral to, or
at the direction of, the Company.
8. Indemnity and Authority of the Trustee.
The Company shall indemnify the Trustee against any and all
loses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance of administration of its duties under this Agreement,
including the costs and expenses of enforcing this Agreement against the Company
(including this Section 8) and defending itself against any claim (whether
asserted by the Company or any Holder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its gross negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The obligations of the Company under this Section 8 shall
survive the satisfaction and discharge of this Agreement.
To secure the Company's payment obligations under this
Section, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Agreement.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(g) or (h) of the Indenture occurs,
the expenses and compensation for the services (including the fees and expenses
of its agent and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee may conclusively rely upon any Officer's
Certificate or Opinion of Counsel it receives pursuant to Section 7.02 of the
Indenture.
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9. Termination.
(a) This Agreement shall create a continuing security interest
in and to the Collateral and such security interest shall, unless otherwise
provided in the Indenture or in this Agreement, remain in full force and effect
until the earlier of (A) the date on which all funds in the Escrow Account have
been distributed in accordance with the terms of this Agreement or (B) the date
of payment in full in cash of all (such earlier date, the "Termination Date").
This Agreement shall be binding upon the Company, its successors and assigns,
and shall inure, together with the rights and remedies of the Trustee hereunder,
to the benefit of the Trustee, the Holders of Notes and their respective
successors, transferees and assigns.
(b) Subject to the provisions of Section 10(c) hereof, this
Agreement shall terminate upon the Termination Date. At such time, the Trustee
shall, at the written request of the Company, reassign and redeliver to the
Company all of the Collateral hereunder that has not been sold, disposed of,
retained or applied by the Trustee in accordance with the terms of this
Agreement and the Indenture. Such reassignment and redelivery shall be without
warranty (either express or implied) by or recourse to the Trustee, except as to
the absence of any prior assignments by or encumbrances created by the Trustee
on its interest in the Collateral, and shall be at the expense of the Company.
10. Miscellaneous.
(a) Waiver. Either party hereto may specifically waive any
breach of this Agreement by any other party, but no such waiver shall be deemed
to have been given unless such waiver is in writing, signed by the waiving
party, and specifically designates the breach waived, nor shall any such waiver
constitute a continuing waiver of similar or other breaches.
(b) Severability. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
(c) Survival of Provisions. All representations, warranties
and covenants of the Company contained herein shall survive the execution and
delivery of this Agreement, and shall terminate only upon the termination of
this Agreement; provided, however that the Company's obligations pursuant to
Section 8 hereof shall survive the termination of this Agreement (including any
termination under applicable bankruptcy laws) or the resignation or removal of
the Trustee.
(d) Assignment. This Agreement shall inure to and be binding
upon the parties and their respective successors and permitted assigns;
provided, however, that the Company may not assign its rights or obligations
hereunder without the express prior written consent of the Trustee, acting at
the direction of the Holders as provided in the Indenture.
(e) Entire Agreement; Amendments. This Agreement and the
Indenture contain the entire agreement among the parties with respect to the
subject matter hereof and supersede any and all prior agreements, understandings
and commitments with respect thereto, whether oral or written; provided,
however, that this Agreement is executed and accepted by the Trustee subject to
all terms and conditions of its acceptance of the trust under the Indenture, as
13
16
fully as if said terms and conditions were set forth at length herein. This
Agreement may be amended only by a writing signed by duly authorized
representatives of both parties. The Trustee may execute an amendment to this
Agreement only if the requisite consent of the Holders of the Notes required by
Section 9.02 of the Indenture has been obtained, unless no such consent is
required by such Section 9.02 of the Indenture.
(f) Notices. Any notice or communication by the Company or the
Trustee to the others is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others' address:
If to the Company:
InterAmericas Communications Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Facsimile number:(000) 000-0000
Telephone number:(000) 000-0000
With a copy to:
Xxxxxx Xxxxx, Esq.
Xxxxx & XxXxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Facsimile number:(000) 000-0000
Telephone number:(000) 000-0000
If to the Trustee:
State Street Bank and Trust Company, N.A.
00 Xxxxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Corporate Trust Department
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
The Company or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other that those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
14
17
(g) Expenses. The Company shall pay to the Trustee from time
to time such compensation for its acceptance of this Agreement and services
hereunder as the Company and the Trustee have separately agreed. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
(h) Security Interest Absolute. All rights of the Trustee and
the Holders of Notes and security interests hereunder, and all obligations of
the Company hereunder, shall be absolute and unconditional irrespective of (a)
any lack of validity or enforceability of the Indenture or any other agreement
or instrument relating thereto; (b) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Secured Obligations, or
any other amendment or waiver of or any consent to any departure from the
Indenture; (c) any exchange, surrender, release or non-perfection of any Liens
on any other collateral for all or any of the Secured Obligations; or (d) to the
extent permitted by applicable law, any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Company in respect of
the Secured Obligations or of this Agreement.
(i) Counterpart Originals. The parties may sign any number of
copies of this Agreement. Each signed copy shall be an original, but all of them
represent the same agreement.
(j) Limitation by Law. All rights, remedies and powers
provided herein may be exercised only to the extent that they will not render
this Agreement not entitled to be recorded, registered or filed under provisions
of any applicable law.
(k) Rights of Holders of Notes. No Holder of Notes shall have
any independent rights hereunder other than those rights granted to individual
Holders of Notes pursuant to Section 6.06 of the Indenture; provided that
nothing in this subsection shall limit any rights granted to the Trustee under
the Notes or the Indenture.
(l) GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
DAMAGES.
(i) THIS AGREEMENT SHALL BE GOVERNED BY AND
INTERPRETED UNDER THE LAWS OF THE STATE OF NEW YORK, AND ANY DISPUTE
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THE COMPANY, THE TRUSTEE AND THE
HOLDERS OF NOTES IN CONNECTION WITH THIS AGREEMENT, AND WHETHER ARISING
IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE
WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAWS PROVISIONS)
AND DECISIONS OF THE STATE OF NEW YORK.
(ii) THE COMPANY AGREES THAT THE TRUSTEE SHALL, IN
ITS CAPACITY AS TRUSTEE OR IN THE NAME AND ON BEHALF OF ANY
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HOLDER OF NOTES, HAVE THE RIGHT, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, TO PROCEED AGAINST THE COMPANY OR ITS PROPERTY IN A COURT IN ANY
LOCATION REASONABLY SELECTED IN GOOD FAITH (AND HAVING PERSONAL OR IN
REM JURISDICTION OVER THE COMPANY OR ITS PROPERTY, AS THE CASE MAY BE)
TO ENABLE THE TRUSTEE TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE TRUSTEE. THE
COMPANY AGREES THAT IT WILL NOT ASSERT ANY COUNTERCLAIMS, SETOFFS OR
CROSS CLAIMS IN ANY PROCEEDING BROUGHT BY THE TRUSTEE TO REALIZE ON
SUCH PROPERTY OR TO ENFORCE A JUDGEMENT OR OTHER COURT ORDER IN FAVOR
OF THE TRUSTEE, EXCEPT FOR SUCH COUNTERCLAIMS, SETOFFS OR CROSSCLAIMS
WHICH, IF NOT ASSERTED IN ANY SUCH PROCEEDING, COULD NOT OTHERWISE BE
BROUGHT OR ASSERTED. THE COMPANY WAIVES ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT IN WHICH THE TRUSTEE HAS COMMENCED A
PROCEEDING DESCRIBED IN THIS PARAGRAPH INCLUDING, WITHOUT LIMITATION,
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS.
(iii) THE COMPANY AND THE TRUSTEE EACH WAIVE ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED
WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN
THEM IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTES RESOLVED
IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
(iv) THE COMPANY AGREES THAT NEITHER THE TRUSTEE NOR
ANY HOLDER OF NOTES SHALL HAVE ANY LIABILITY TO THE COMPANY (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY THE
COMPANY IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO,
THE TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED BY THIS
AGREEMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION
THEREWITH, UNLESS IT IS DETERMINED BY A FINAL AND NONAPPEALABLE
JUDGMENT OF A COURT THAT IS BINDING ON THE TRUSTEE OR SUCH HOLDER OF
NOTES, AS THE CASE MAY BE, THAT SUCH LOSSES WERE THE RESULT OF ACTS OR
OMISSIONS ON THE PART OF THE TRUSTEE OR SUCH HOLDER OF NOTES, AS THE
CASE MAY BE, CONSTITUTING BAD FAITH, GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
(v) TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE COMPANY WAIVES ALL
RIGHTS OF NOTICE AND HEARING OF ANY KIND PRIOR TO THE EXERCISE BY THE
TRUSTEE OR ANY HOLDER OF NOTES OF ITS
16
19
RIGHTS DURING THE CONTINUANCE OF AN EVENT OF DEFAULT TO REPOSSESS THE
COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON THE
COLLATERAL OR OTHER SECURITY FOR THE SECURED OBLIGATIONS. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE COMPANY WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF THE TRUSTEE OR ANY HOLDER OF NOTES IN CONNECTION
WITH ANY JUDICIAL PROCESS OR PROCEEDING TO OBTAIN POSSESSION OF,
REPLEVY, ATTACH OR LEVY UPON THE COLLATERAL OR OTHER SECURITY FOR THE
SECURED OBLIGATIONS, TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF THE TRUSTEE OR ANY HOLDER OF NOTES, OR TO ENFORCE
BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER OR PRELIMINARY OR
PERMANENT INJUNCTION, THIS AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT
BETWEEN THE COMPANY ON THE ONE HAND AND THE TRUSTEE AND/OR THE HOLDERS
OF NOTES ON THE OTHER HAND.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Proceed Pledge and Escrow Agreement as of the day first written
above.
COMPANY: INTERAMERICAS COMMUNICATIONS CORPORATION
By:
-----------------------------------
Name:
Title:
TRUSTEE: STATE STREET BANK AND TRUST COMPANY, N.A.
By:
-----------------------------------
Name:
Title:
21
EXHIBIT A
[Form of]
Certificate of Release of Funds in Interest Reserve Subaccount to Paying Agent
INTERAMERICAS COMMUNICATIONS CORPORATION
Date:
-------------
The undersigned officer of InterAmericas Communications
Corporation, a Texas corporation (the "Company"), hereby certifies, pursuant to
Section 3(a) of the Proceeds Pledge and Escrow Agreement, dated as of October
27, 1997 (the "Escrow Agreement"), by and between the Company and State Street
Bank and Trust Company, N.A., as trustee (the "Trustee"), under the Indenture
dated as of October 27, 1997 (the "Indenture"), between the Company and the
Trustee, that:
1. This request for release of funds has been duly authorized by
all necessary corporate action and does not contravene, or
constitute a default under, any provision of applicable law or
regulation or the certificate of incorporation of the Company
or of the Escrow Agreement, the Indenture or any other
agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or result in the creation
or imposition of any Lien on any assets of the Company; and
2. The funds released pursuant hereto shall be applied by the
Paying Agent toward payment of interest due on the Notes on
________, ____ and for no other purpose.
The Company hereby requests the Trustee to liquidate
$_________ worth of Allowable Investments in the Interest Reserve Subaccount by
not later than 12:00 noon (New York time) on _________ __, _____ and to transfer
$________ in immediately available funds to the Paying Agent.
Capitalized terms used herein without definition shall have
the meanings set forth in the Indenture.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
A-1
22
EXHIBIT B
[Form of]
Certificate of Release of Funds in Interest Reserve Subaccount to Company
INTERAMERICAS COMMUNICATIONS CORPORATION
Date:
-------------
The undersigned officer of InterAmericas Communications
Corporation, a Texas corporation (the "Company"), hereby certifies, pursuant to
Section [3(b)][3(c)] of the Proceeds Pledge and Escrow Agreement, dated as of
October 27, 1997 (the "Escrow Agreement"), by and between the Company and State
Street Bank and Trust Company, N.A., as trustee (the "Trustee"), under the
Indenture dated as of October 27, 1997 (the "Indenture"), between the Company
and the Trustee, that:
1. This request for release of funds has been duly authorized by
all necessary corporate action and does not contravene, or
constitute a default under, any provision of applicable law or
regulation or the certificate of incorporation of the Company
or of the Escrow Agreement, the Indenture or any other
agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or result in the creation
or imposition of any Lien on any assets of the Company; and
2. [The amount of funds requested to be released pursuant hereto
is no greater than the amount of funds previously used by the
Company from sources other than the Interest Proceeds
Subaccount to make the payment of interest due on the Notes on
________ (and not previously released to the Company from the
Interest Proceeds Subaccount), which interest payment has been
paid in full.][After giving effect to the release of funds
from the Interest Reserve Subaccount as provided below, the
amount of funds and Allowable Investments remaining in the
Interest Proceeds Subaccount will be at least 125% of the
amount sufficient to pay in full the remainder of the first
six (6) scheduled interest payments on the Notes not already
paid in full, as confirmed in the attached written opinion of
__________, a nationally recognized firm of independent public
accountants.]
The Company hereby requests the Trustee to liquidate
$_________ worth of Allowable Investments in the Interest Reserve Subaccount by
not later than 12:00 noon (New York time) on _________, and to transfer
$________ in immediately available funds to the Company.
B-1
23
Capitalized terms used herein without definition shall have
the meanings set forth in the Indenture.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
B-2
24
EXHIBIT C
[Form of]
Permitted Expenditures Certificate
INTERAMERICAS COMMUNICATIONS CORPORATION
Date:
------------------
The undersigned officer of InterAmericas Communications
Corporation, a Texas corporation (the "Company"), hereby certifies, pursuant to
Section 4(a) of the Proceeds Pledge and Escrow Agreement, dated as of October
27, 1997 (the "Escrow Agreement"), by and between the Company and State Street
Bank and Trust Company, N.A., as trustee (the "Trustee"), under the Indenture
dated as of October 27, 1997 (the "Indenture"), between the Company and the
Trustee, that:
1. This request for release of funds has been duly authorized by
all necessary corporate action and does not contravene, or
constitute a default under, any provision of applicable law or
regulation or the certificate of incorporation of the Company
or of the Escrow Agreement, the Indenture or any other
agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or result in the creation
or imposition of any Lien on any assets of the Company;
2. The Company will use the Necessary Funds (as defined below)
for the following Permitted Expenditures (as defined in the
Escrow Agreement):
3. Attached hereto is supporting documentation detailing the
Company's expected Permitted Expenditures for the immediately
succeeding three (3) months; and
4. To date, the Company has received $____________ from the
Collateral Subaccount, (A) ____% of which has been used in
connection with Acquisition Costs or Systems Costs directly
related to Telecommunications Businesses in Peru and (B)
$______________ of which has been used for general corporate
purposes.
The Company hereby requests the Trustee to liquidate
$_________ worth of Allowable Investments in the Collateral Subaccount by not
later than 12:00 noon (New York time) on _________ __, _____ and to transfer
$________ (the "Necessary Funds") in immediately available funds to _________ at
_________..
C-1
25
Capitalized terms used herein without definition shall have
the meanings set forth in the Indenture.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
C-2
26
EXHIBIT D
[Form of]
Special Offer to Purchase Certificate
INTERAMERICAS COMMUNICATIONS CORPORATION
Date:
-----------------
The undersigned officer of InterAmericas Communications
Corporation, a Texas corporation (the "Company"), hereby certifies, pursuant to
Section 4(b) of the Proceeds Pledge and Escrow Agreement, dated as of October
27, 1997 (the "Escrow Agreement"), by and between the Company and State Street
Bank and Trust Company, N.A., as trustee (the "Trustee"), under the Indenture
dated as of October 27, 1997 (the "Indenture"), between the Company and the
Trustee, that:
1. This request for release of funds has been duly authorized by
all necessary corporate action and does not contravene, or
constitute a default under, any provision of applicable law or
regulation or the certificate of incorporation of the Company
or of the Escrow Agreement, the Indenture or any other
agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or result in the creation
or imposition of any Lien on any assets of the Company; and
2. Attached hereto is a list of Holders and the aggregate
principal amount of Notes held by such Holders that have
accepted the Special Offer to Purchase.
The Company hereby directs the Trustee to liquidate $_________
worth of Allowable Investments in the Collateral Subaccount by not later than
12:00 noon (New York time) on the Special Offer to Purchase Payment Date
(__________, _____) and to pay the Special Offer to Purchase Amount in
immediately available funds to the Paying Agent for payment to the Holders of
Notes on the Special Offer to Purchase Payment Date.
Capitalized terms used herein without definition shall have
the meanings set forth in the Indenture.
By:
----------------------------------
Name:
---------------------------------
Title:
--------------------------------
D-1
27
EXHIBIT E
[Form of]
Special Mandatory Redemption Certificate
INTERAMERICAS COMMUNICATIONS CORPORATION
Date: ________________
The undersigned officer of InterAmericas Communications
Corporation, a Texas corporation (the "Company"), hereby certifies, pursuant to
Section 4(c) of the Proceeds Pledge and Escrow Agreement, dated as of October
27, 1997 (the "Escrow Agreement"), by and between the Company and State Street
Bank and Trust Company, N.A., as trustee (the "Trustee"), under the Indenture
dated as of October 27, 1997 (the "Indenture"), between the Company and the
Trustee, that:
1. This request for release of funds has been duly authorized by
all necessary corporate action and does not contravene, or
constitute a default under, any provision of applicable law or
regulation or the certificate of incorporation of the Company
or of the Escrow Agreement, the Indenture or any other
agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or result in the creation
or imposition of any Lien on any assets of the Company; and
2. The Company is required by the terms of the Indenture to
redeem all of the Notes pursuant to a Special Mandatory
Redemption.
The Company hereby directs the Trustee to liquidate all of the
Allowable Investments in the Collateral Subaccount by not later than 12:00 noon
(New York time) on the Special Mandatory Redemption Date (____________, _______)
and to transfer the Special Mandatory Redemption Funds in immediately available
funds to the Paying Agent for payment to the Holders of Notes on the Special
Mandatory Redemption Date. The Company further directs the Trustee to release to
the Company all funds, if any, remaining in the Collateral Subaccount after
payment of the Special Mandatory Redemption Funds to the Paying Agent by
depositing such funds in account number __________ at ____________.
E-1
28
Capitalized terms used herein without definition shall have
the meanings set forth in the Indenture.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
X-0
00
XXXXXXX X
[Form of]
[Form of Change of Control Offer Certificate]
INTERAMERICAS COMMUNICATIONS CORPORATION
Date:
-----------------
The undersigned officer of InterAmericas Communications
Corporation, a Texas corporation (the "Company"), hereby certifies, pursuant to
Section 4(d) of the Proceeds Pledge and Escrow Agreement, dated as of October
27, 1997 (the "Escrow Agreement"), by and between the Company and State Street
Bank and Trust Company, N.A., as trustee (the "Trustee"), under the Indenture
dated as of October 27, 1997 (the "Indenture"), between the Company and the
Trustee, that:
1. This request for release of funds has been duly authorized by
all necessary corporate action and does not contravene, or
constitute a default under, any provision of applicable law or
regulation or the certificate of incorporation of the Company
or of the Escrow Agreement, the Indenture or any other
agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or result in the creation
or imposition of any Lien on any assets of the Company; and
2. Attached hereto is a list of Holders and the aggregate
principal amount of Notes held by such Holders that have
accepted the Change of Control Offer.
The Company hereby directs the Trustee to liquidate $_________
worth of Allowable Investments in the Collateral Subaccount by not later than
12:00 noon (New York time) on the Change of Control Payment Date (________,
_____) and to transfer the Change of Control Offer Amount in immediately
available funds to the Paying Agent for payment to the Holders of Notes on the
Change of Control Payment Date.
Capitalized terms used herein without definition shall have
the meanings set forth in the Indenture.
By:
----------------------------------
Name:
---------------------------------
Title:
--------------------------------
F-1
30
EXHIBIT G
[Form of]
Release Certificate
INTERAMERICAS COMMUNICATIONS CORPORATION
Date:
-------------
The undersigned officer of InterAmericas Communications
Corporation, a Texas corporation (the "Company"), hereby certifies, pursuant to
Section 4(e) of the Proceeds Pledge and Escrow Agreement, dated as of October
27, 1997 (the "Escrow Agreement"), by and between the Company and State Street
Bank and Trust Company, N.A., as trustee (the "Trustee"), under the Indenture
dated as of October 27, 1997 (the "Indenture"), between the Company and the
Trustee, that:
1. This request for release of funds has been duly authorized by
all necessary corporation action and does not contravene, or
constitute a default under, any provision of applicable law or
regulation or the certificate of incorporation of the Company
or of the Escrow Agreement, the Indenture or any other
agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or result in the creation
or imposition of any Lien on any assets of the Company; and
2. The funds so released shall be applied by the Paying Agent
toward _______________________, each of which is a permitted
use under Section 6(e) of the Escrow Agreement.
The Company hereby requests the Trustee to liquidate
$_________ worth of Allowable Investments in the Collateral Subaccount by not
later than 12:00 noon (New York time) on _________ __, _____ and to transfer
such funds in immediately available funds to the Company.
Capitalized terms used herein without definition shall have
the meanings set forth in the Indenture.
By:
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Name:
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Title:
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G-1
