EXHIBIT 4.10
SUBORDINATION AGREEMENT dated as of March
25, 2002, among LATIN AMERICAN EQUIPMENT FINANCE
B.V., a limited liability company organized under the
laws of the Netherlands (the "BORROWER"), AT&T LATIN
AMERICA CORP., a Delaware corporation ("HOLDINGS"),
each subsidiary of Holdings party hereto or listed on
Schedule I hereto (each such subsidiary individually
a "RESTRICTED SUBSIDIARY" and, collectively, the
"RESTRICTED SUBSIDIARIES" and, together with Holdings
and the Borrower, the "LOAN PARTIES"), GLOBAL CARD
HOLDINGS INC. ("GLOBAL"), AT&T CORP. ("AT&T"), such
other parties as shall become Subordinated Creditors
hereunder, as provided herein, and ABN AMRO TRUSTEES
LIMITED, a limited liability company incorporated
under the laws of England and Wales, as Collateral
Agent (in such capacity, the "COLLATERAL AGENT").
Reference is made to the Collateral Agency and Intercreditor
Agreement dated as of March 11, 2002 (as amended, supplemented or otherwise
modified from time to time, the "COLLATERAL AGENCY AGREEMENT") among Holdings,
the Borrower, the Collateral Agent and the Representatives and Unrepresented
Holders referred to therein. Each Subordinated Creditor acknowledges receipt of
a true and correct copy of each of the Collateral Agency Agreement and the
Common Agreement referred to therein.
The Lenders under each Initial Participating Credit Agreement
have agreed to make Loans to the Borrower pursuant to, and upon the terms and
subject to the conditions specified in, the Common Agreement and the Initial
Participating Credit Agreements. The obligations of such Lenders to make Loans
are conditioned on, among other things, the execution and delivery by the
Subordinated Creditors, the Loan Parties and the Collateral Agent of a
subordination agreement in the form hereof. In order to induce such Lenders to
extend credit under the Initial Participating Credit Agreements, each of the
Subordinated Creditors and the Loan Parties is willing to execute and deliver
this Agreement.
Accordingly, the Subordinated Creditors, the Loan Parties and
the Collateral Agent, on behalf of itself and each other Senior Creditor (as
defined herein) party to any Initial Participating Credit Agreement, hereby
agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITION OF TERMS USED HEREIN. Unless the
context otherwise requires, all capitalized terms used but not defined herein
shall have the meanings set forth in the Collateral Agency Agreement (including
by reference to the Common Agreement); PROVIDED that any amendment or
modification to any such definition shall not be effective for purposes of this
Agreement without AT&T's consent.
SECTION 1.02. DEFINITION OF CERTAIN TERMS USED HEREIN. As used
herein, the following terms shall have the following meanings:
"ADDITIONAL SECURED INSTRUMENT" means any Secured Instrument
that evidences or governs the terms of any of the Additional Senior Obligations.
"ADDITIONAL SENIOR CREDITOR" means any Secured Party that is a
Holder of an Additional Senior Obligation and its successors and assigns.
"ADDITIONAL SENIOR OBLIGATIONS" means, with respect to any
Loan Party, all monetary obligations of such Loan Party that constitute (a)
Permitted Additional Obligations or Increased Loan Obligations, but only if AT&T
(or its successor hereunder pursuant to Section 5.2(b)) shall have agreed in
writing that such Permitted Additional Obligations or Increased Loan Obligations
constitute "Additional Senior Obligations" hereunder, (b) Local Financing
Obligations attributable to Indebtedness constituting Additional Senior
Obligations pursuant to clause (a) above or (c) Support Obligations in respect
of Obligations described in clause (a) or (b) above.
"EXCLUDED AT&T INDEBTEDNESS" means (a) Indebtedness (including
Disqualified Stock issued by Holdings, if applicable) under the Supplemental
Agreement Facility and any Guarantee of such Indebtedness and (b) Indebtedness
of any Loan Party to any Subordinated Creditor that is permitted by clause (e),
(h), (l), (m) or (n) of Section 6.01 of the Common Agreement.
"INITIAL SECURED INSTRUMENTS" means any Secured Instrument
that evidences or governs the terms of any of the Initial Senior Obligations,
including each Initial Participating Credit Agreement.
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"INITIAL SENIOR CREDITOR" means any Secured Party that is a
Holder of an Initial Senior Obligation and its successors and assigns.
"INITIAL SENIOR OBLIGATIONS" means, with respect to any Loan
Party, all monetary obligations of such Loan Party that constitute (a) Initial
Credit Facility Obligations (other than Increased Loan Obligations), (b) Local
Financing Obligations attributable to Loans constituting Initial Credit Facility
Obligations (other than Increased Loan Obligations) or (c) Support Obligations
in respect of Obligations described in clause (a) or (b) above.
"INCREASED LOAN OBLIGATIONS" means Initial Credit Facility
Obligations in respect of principal of or interest on any Loans outstanding
under an Initial Participating Credit Agreement in excess of the total amount of
the Initial Secured Instrument Commitments under such Initial Participating
Credit Agreement in effect on the Effective Date immediately prior to the first
borrowing thereunder.
"PRIMARY SUBORDINATED OBLIGATIONS" means, with respect to any
Loan Party, the following:
(a) all monetary obligations of such Loan Party, whether in
respect of principal, premium, interest or otherwise, in respect of any
Indebtedness owed by such Loan Party to a Subordinated Creditor
(including any such obligations owing to any other Person for the
direct or indirect benefit of a Subordinated Creditor), including
Indebtedness in respect of the AT&T Credit Facilities; and
(b) all monetary obligations, whether in respect of dividends,
redemptions, distributions upon liquidation or otherwise, in respect of
the Series B Preferred Stock;
PROVIDED that the Primary Subordinated Obligations shall not include obligations
in respect of Excluded AT&T Indebtedness.
"SECONDARY SUBORDINATED OBLIGATIONS" means, with respect to
any Loan Party, all monetary obligations and other liabilities of such Loan
Party at any time owing to a Subordinated Creditor (including any such
obligations or other liabilities owing to any other Person for the direct or
indirect benefit of the Subordinated Creditor), including obligations in respect
of principal, premium or interest under the Supplemental Agreement Facility or
any Guarantee thereof; PROVIDED that Secondary Subordinated Obligations of
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a Loan Party shall not include (a) its Primary Subordinated Obligations, (b) any
obligations in respect of Excluded AT&T Indebtedness described in clause (b) of
the definition of such term or (c) liabilities arising in the ordinary course of
business in respect of asynchronous transfer mode, private communications line,
communications or network connectivity, traffic termination, collocation,
ordinary telephony and related value added services, value added data services
and similar services and telecommunications services provided under tariff or
similar arrangements.
"SENIOR CREDITORS" means the Initial Senior Creditors and any
Additional Senior Creditors.
"SENIOR CREDITOR DOCUMENTS" means the Initial Secured
Instruments, any Additional Secured Instruments and the Support Documents.
"SENIOR OBLIGATIONS" means the Initial Senior Obligations and
any Additional Senior Obligations.
"SUBORDINATED CREDITOR" means (a) initially, Global and AT&T
and (b) each Person that becomes a "Subordinated Creditor" hereunder as provided
in Section 3.5 or 5.11(a); PROVIDED that a Person shall cease to be a
"Subordinated Creditor" as provided in Section 5.2(b).
"SUBORDINATED OBLIGATIONS" means the Primary
Subordinated Obligations and the Secondary Subordinated
Obligations.
SECTION 1.03. RULES OF INTERPRETATION. The rules of
interpretation specified in Section 1.02 of the Collateral Agency Agreement
shall be applicable to this Agreement.
ARTICLE II
SUBORDINATION
SECTION 2.1. SUBORDINATION. Each Subordinated Creditor hereby
agrees that all the Subordinated Obligations owed to it by each Loan Party are
hereby expressly subordinated, to the extent and in the manner set forth in this
Article II, to the prior payment in full in cash of all Senior Obligations of
such Loan Party in accordance with the terms thereof. The parties hereto
acknowledge that the total amount of the initial Commitments under the Initial
Participating Credit Agreements (combined) is $300,000,000 and, accordingly, the
maximum aggregate principal amount of
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Loans that may be included in the Initial Senior Obligations is $300,000,000.
SECTION 2.2. DISSOLUTION OR INSOLVENCY. Upon any distribution
of the assets of any Loan Party or upon any dissolution, winding up, liquidation
or reorganization of any Loan Party, whether in bankruptcy, insolvency,
reorganization, arrangement or receivership proceedings or otherwise, or upon
any assignment for the benefit of creditors or any other marshaling of the
assets and liabilities of any Loan Party, or otherwise:
(a) the Senior Creditors of such Loan Party shall first be
entitled to receive payment in full in cash of the Senior Obligations of such
Loan Party in accordance with the terms of such Senior Obligations before any
Subordinated Creditor shall be entitled to receive any payment on account of any
Subordinated Obligations of such Loan Party, whether as principal, interest or
otherwise; and
(b) any payment by, or distribution of the assets of, such
Loan Party of any kind or character, whether in cash, property or securities, to
which any Subordinated Creditor would be entitled except for the provisions of
this Agreement shall be paid or delivered by the Person making such payment or
distribution (whether a trustee in bankruptcy, a receiver, custodian or
liquidating trustee or otherwise) directly to the Collateral Agent for the
benefit of the Secured Parties that are Senior Creditors to the extent necessary
to make payment in full in cash of all Senior Obligations of such Loan Party
remaining unpaid, after giving effect to any concurrent payment or distribution
to the Senior Creditors in respect of the Senior Obligations, to be held and
applied by the Collateral Agent as provided in the Collateral Agency Agreement.
SECTION 2.3. PAYMENT OF PRIMARY SUBORDINATED OBLIGATIONS
PROHIBITED. (a) Subject to paragraph (c) below, no payment (whether directly, by
exercise of any right of set-off or otherwise) in respect of any Primary
Subordinated Obligation of any Loan Party, whether as principal, redemption
price, interest, dividend or otherwise, shall be permitted at any time until all
Senior Obligations have been paid in full in cash and all Commitments to make
Loans that would constitute Senior Obligations shall have terminated.
(b) Subject to paragraph (c) below, no payment of any Primary
Subordinated Obligation that is prohibited by paragraph (a) above shall be
received or accepted by or on behalf of any Subordinated Creditor.
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(c) The provisions of this Section 2.3 shall not apply to the
payment of any Primary Subordinated Obligation to the extent payment thereof is
not prohibited at the time by the Common Agreement (including Section 6.06
thereof) or any other Secured Instrument; PROVIDED that no such payment shall be
permitted, and no such payment shall be received or accepted by or on behalf of
any Subordinated Creditor, if immediately after giving effect to such payment
(i) a Default shall have occurred and be continuing, (ii) a Notice of
Enforcement is in effect or (iii) an event shall have occurred and be continuing
that with notice, lapse of time or both would permit a Notice of Enforcement to
be delivered.
SECTION 2.4. PAYMENT OF SECONDARY SUBORDINATED OBLIGATIONS
PROHIBITED UPON DEFAULT. No payment (whether directly, by exercise of any right
of set-off or otherwise) in respect of the Secondary Subordinated Obligations of
any Loan Party, whether as principal, redemption price, interest, dividend or
otherwise, shall be permitted, and no such payment shall be received or accepted
by or on behalf of any Subordinated Creditor, if immediately after giving effect
to such payment (a) a Default shall have occurred and be continuing, (b) a
Notice of Enforcement is in effect or (c) an event shall have occurred and be
continuing that with notice, lapse of time or both would permit a Notice of
Enforcement to be delivered. No payment of principal in respect of Indebtedness
under the Supplemental Agreement Facility shall be permitted, and no such
payment shall be received or accepted by or on behalf of any Subordinated
Creditor, except to the extent such Indebtedness has been replaced or refinanced
in accordance with the terms of the Supplemental Agreement and the Senior
Creditor Documents.
SECTION 2.5. CERTAIN PAYMENTS HELD IN TRUST. In the event that
any payment by, or distribution of the assets of, any Loan Party of any kind or
character, whether in cash, property or securities, and whether directly, by
exercise of any right of set-off or otherwise, shall be received by or on behalf
of any Subordinated Creditor at a time when such payment is prohibited by this
Agreement, such payment or distribution shall be held in trust for the benefit
of, and shall be paid over to, (a) the Collateral Agent for the benefit of the
Secured Parties that are Senior Creditors to the extent necessary to make
payment in full in cash of all Senior Obligations of such Loan Party remaining
unpaid, after giving effect to any concurrent payment or distribution to the
Senior Creditors in respect of such Senior Obligations, to be held and applied
by the Collateral Agent as provided in the Collateral Agency Agreement or (b) in
the case of any payment prohibited under Section 2.3
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or 2.4 hereof, the Loan Party from which such payment was received or, if
directed by the Collateral Agent, to the Collateral Agent to be held and applied
by the Collateral Agent as provided in the Collateral Agency Agreement.
SECTION 2.6. SUBROGATION. Subject to the prior indefeasible
payment in full in cash of the Senior Obligations of a Loan Party, to the extent
that, as a result of the provisions of this Agreement, any Senior Creditors of a
Loan Party receive payments or distributions from such Loan Party that otherwise
would have been made to the Subordinated Creditors of such Loan Party, each
Subordinated Creditor of such Loan Party shall be subrogated to the rights of
the Senior Creditors of such Loan Party to receive payments or distributions in
cash, property or securities of such Loan Party applicable to such Senior
Obligations until all amounts owing on the Subordinated Obligations of such Loan
Party shall be paid in full, and as between and among a Loan Party, its
creditors (other than its Senior Creditors) and the applicable Subordinated
Creditors of such Loan Party, no such payment or distribution made to the
Collateral Agent by virtue of this Agreement that otherwise would have been made
to the Subordinated Creditors of such Loan Party shall be deemed to be a payment
by such Loan Party on account of its Subordinated Obligations, it being
understood that the provisions of this Agreement are intended solely for the
purpose of defining the relative rights of the Subordinated Creditors, on the
one hand, and the Senior Creditors, on the other hand.
ARTICLE III
OTHER MATTERS REGARDING THE SUBORDINATED OBLIGATIONS
SECTION 3.1. OTHER CREDITORS. Nothing contained in this
Agreement is intended to or shall impair, as between and among the Loan Parties,
their creditors (other than their Senior Creditors) and the Subordinated
Creditors, the obligations of each Loan Party to pay to the Subordinated
Creditors of such Loan Party the Subordinated Obligations of such Loan Party as
and when the same shall become due and payable in accordance with the terms
thereof, or affect the relative rights of the Subordinated Creditors and the
other creditors of any Loan Party (other than their Senior Creditors).
SECTION 3.2. PROOFS OF CLAIM. In the event of any dissolution,
winding up, liquidation or reorganization of any Loan Party, or the commencement
of any bankruptcy, insolvency, reorganization, arrangement or receivership
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proceedings or otherwise, or any assignment for the benefit of creditors or any
other marshaling of the assets and liabilities of any Loan Party, each
Subordinated Creditor agrees to file proofs of claim for the Subordinated
Obligations owed to it upon demand of the Collateral Agent, in default of which
the Collateral Agent or other authorized representative of the Senior Creditors
is hereby irrevocably authorized so to file in order to effectuate the
provisions hereof. This Section shall not be construed to permit any
Subordinated Creditor to retain any payment received by it in respect of a
Subordinated Obligation that such Subordinated Creditor is not entitled to
receive and retain under any other provision of this Agreement.
SECTION 3.3. NO WAIVER. No right of any Senior Creditor to
enforce this Agreement shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of any of the Collateral Agent, the
other Senior Creditors, or any Loan Party, or by any noncompliance by any Loan
Party with the terms, provisions and covenants contained herein, and the Senior
Creditors are hereby expressly authorized to extend, renew, increase, decrease,
modify or amend the terms of the Senior Obligations or any security therefor,
and to release, sell or exchange any such security and otherwise deal freely
with the Loan Parties, all without notice to or consent of any Subordinated
Creditor and without affecting the liabilities and obligations of the parties
hereto.
SECTION 3.4. ACCELERATION AND REMEDIES; BANKRUPTCY FILINGS.
Each Subordinated Creditor agrees that, except for claims submitted in any
proceeding contemplated by Section 3.2 hereof, it will not exercise any remedies
or take any action or proceeding to enforce any Subordinated Obligation if the
payment of such Subordinated Obligation is then prohibited by Section 2.3 or
2.4, and each Subordinated Creditor further agrees not to file, or to join with
any other creditors of any Loan Party in filing, any petition commencing any
bankruptcy, insolvency, reorganization, arrangement or receivership proceeding
or any assignment for the benefit of creditors against or in respect of any Loan
Party or any other marshaling of the assets and liabilities of any Loan Party.
Each Subordinated Creditor further agrees, to the fullest extent permitted under
applicable law, that it will not cause any Loan Party to file any such petition,
commence any such proceeding or make any such assignment referred to above until
all Senior Obligations have been paid in full. Notwithstanding the foregoing,
this Section shall apply only to actions taken by a Subordinated Creditor in its
capacity as a creditor, and shall not apply
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to any actions taken in the capacity of shareholder or director of any Loan
Party.
SECTION 3.5. TRANSFER OF SUBORDINATED OBLIGATIONS. Each
Subordinated Creditor agrees that it will not sell, assign, transfer or
otherwise dispose of all or any part of the Subordinated Obligations owed to it
unless the Person to whom such sale, assignment, transfer or disposition is made
shall acknowledge in writing (delivered to the Collateral Agent) that it shall
be bound by the terms of this Agreement, including the terms of this Section
3.5, as though named herein as a Subordinated Creditor, and shall become and be
deemed to be a Subordinated Creditor hereunder for all purposes hereof in
respect of such Subordinated Obligations. Except as provided in this Section,
this Agreement shall not be construed to impose any restriction on the sale,
assignment, transfer or disposition of any Subordinated Obligation.
SECTION 3.6. OBLIGATIONS HEREUNDER NOT AFFECTED. (a) All
rights and interests of the Senior Creditors hereunder, and all agreements and
obligations of the Subordinated Creditors hereunder, shall remain in full force
and effect irrespective of:
(i) any lack of validity or enforceability of any
Senior Creditor Document;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Senior Obligations, or any
other amendment or waiver of or consent to departure from any Senior
Creditor Document;
(iii) any exchange, release or nonperfection of any security
interest in or Lien on any Collateral, or any release or amendment or
waiver of or consent to departure from any Guarantee, in respect of all
or any of the Senior Obligations; or
(iv) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Loan Party in respect of
its Senior Obligations or of any Subordinated Creditor in respect of
this Agreement.
(b) This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of the Senior
Obligations or any part thereof is rescinded or must otherwise be returned by
any Senior Creditor upon the insolvency, bankruptcy or reorganization
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of any Loan Party or otherwise, all as though such payment had not been made.
(c) Each Subordinated Creditor hereby authorizes the Senior
Creditors, without notice or demand and without affecting or impairing any of
the obligations of such Subordinated Creditor hereunder, from time to time to
(i) renew, compromise, extend, increase, accelerate or otherwise change the time
for payment of, or otherwise change the terms of, the Senior Obligations or any
part thereof and (ii) exercise or refrain from exercising any rights against
such Subordinated Creditor, any Loan Party or any other Person.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SUBORDINATED CREDITORS
Each Subordinated Creditor represents and warrants to the
Collateral Agent, for the benefit of the Senior Creditors, that:
(a) It is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized.
(b) The execution, delivery and performance by it of this
Agreement and the consummation of the transactions contemplated hereby are
within its powers, have been duly authorized by all necessary action on its
part, require no action by or in respect of, or filing with, any Governmental
Authority (other than such as have been duly taken or made) and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of its certificate of incorporation or by-laws (or other
organizational documents, as applicable) or of any material agreement, judgment,
injunction, order, decree or other instrument binding upon it or any of its
subsidiaries.
(c) This Agreement constitutes a valid and binding agreement
of such Subordinated Creditor, enforceable against such Subordinated Creditor in
accordance with its terms, subject to the effect of applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and equitable
principles of general applicability.
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ARTICLE V
MISCELLANEOUS
SECTION 5.1. NOTICES. All communications and notices hereunder
shall be in writing and shall be given as provided in Section 11.01 of the
Collateral Agency Agreement; PROVIDED that any communication or notice hereunder
to (a) a Subordinated Creditor shall be given to it at the address or facsimile
number set forth under its signature on the signature page hereof or of the
supplement hereto pursuant to which it becomes a party hereto and (b) a
Restricted Subsidiary shall be given to it at its address or facsimile number
set forth on Schedule II attached hereto, in each case with a copy to Holdings.
Any party hereto may change its address or facsimile number for notices and
other communications hereunder by notice to the other parties hereto.
SECTION 5.2. SUCCESSORS AND ASSIGNS. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party (including, in the
case of any Secured Party, each transferee or assignee of Senior Obligations
held by it); and all covenants, promises and agreements by or on behalf of any
of the Subordinated Creditors, the Loan Parties or the Collateral Agent that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns. Each of the Subordinated Creditors and the
Loan Parties agrees that, subject to Section 3.5 and except as provided in
paragraph (b) below, it shall not assign or delegate any of its obligations
under this Agreement without the prior written consent of each Secured Party,
and any purported assignment or delegation without such consent shall be void
and of no effect.
(b) It is understood and agreed that, if AT&T transfers
ownership of all the Equity Interests of Holdings owned by AT&T to the AT&T
Successor or a Permitted Transferee, then AT&T may assign to the AT&T Successor
or such Permitted Transferee (as applicable) all its obligations under this
Agreement pursuant to a written agreement among AT&T, such assignee and the
Collateral Agent, reasonably satisfactory to the Collateral Agent, providing for
the assumption by such assignee of all such obligations, whereupon AT&T shall be
released from such obligations and shall cease to be a party hereto; PROVIDED
that (i) if AT&T does not transfer and assign to such assignee pursuant to such
assignment agreement all Subordinated Obligations held by it and all its
interests
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and obligations under the AT&T Credit Facilities and the Supplemental Agreement
Facility, then AT&T shall remain a party hereto as a Subordinated Creditor in
respect of any such Subordinated Obligations and/or any Subordinated Obligations
that may arise under any such AT&T Credit Facilities or Supplemental Agreement
Facility unless and until assigned in accordance with this Agreement and (ii)
any transfer or assignment by AT&T of its obligations under any of the AT&T
Credit Facilities or the Supplemental Agreement Facility may be made only to an
AT&T Successor or a Permitted Transferee pursuant to a written agreement
reasonably satisfactory to the Collateral Agent pursuant to which the assignee
agrees to become a Subordinated Creditor hereunder in respect of any
Indebtedness thereunder, but the foregoing shall not be construed to restrict
assignment of rights in respect of an outstanding Subordinated Obligation in
accordance with Section 3.5. This paragraph (b) also shall apply to any
subsequent transfers and assignments by the AT&T Successor or any Permitted
Transferee that becomes a Subordinated Creditor hereunder, as though named in
the previous sentence in the place of AT&T.
SECTION 5.3. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 5.4. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a)
Each of the parties hereto hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. To the extent permitted by law, each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Collateral Agent or any other Secured Party may otherwise have to
bring any action or proceeding relating to this Agreement against any Loan
Party, any Subordinated Creditor or any of their respective properties in the
courts of any jurisdiction.
(b) Each of the parties hereto hereby irrevocably
and unconditionally waives, to the fullest extent it may
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legally and effectively do so, any objection which it may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any court referred to in the first sentence of
paragraph (a) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each of the Subordinated Creditors and each of the Loan
Parties irrevocably consents to service of process in the manner provided for
notices in Section 5.1. Each of the Subordinated Creditors (other than any
Subordinated Creditor organized in or having offices in New York City) and each
of the Loan Parties hereby irrevocably designates, appoints and empowers CT
Corporation System, with offices on the date hereof at 000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its designee, appointee and agent to receive
and accept for and on its behalf, and in respect of its property, service of any
and all legal process, summons, notices and documents which may be served in any
action or proceeding described in paragraph (a) above. If for any reason such
designee, appointee and agent shall cease to act as such, each of the
Subordinated Creditors (other than any Subordinated Creditor organized in or
having offices in New York City) and each of the Loan Parties agrees to
designate a new designee, appointee and agent in New York City on the terms and
for the purposes of this provision reasonably satisfactory to the Agents.
Nothing in this Agreement or any other Loan Document will affect the right of
any party to this Agreement to serve process in any other manner permitted by
law.
SECTION 5.5. WAIVERS; AMENDMENT. (a) No failure or delay of
the Collateral Agent in exercising any power or right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the Collateral Agent and the other Secured Parties under the other
Support Documents and the Secured Instruments are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provisions of this Agreement or consent to the departure by any Subordinated
Creditor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the
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purpose for which given. No notice to or demand by any Subordinated Creditor or
Loan Party in any case shall entitle such Subordinated Creditor or Loan Party to
any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Collateral Agent, the Loan Parties and the
Subordinated Creditors with respect to which such waiver, amendment or
modification is to apply, subject to any consent required in accordance with
Section 8.01 of the Collateral Agency Agreement.
SECTION 5.6. WAIVERS. (A) WAIVER OF JURY TRIAL. EACH PARTY
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.6.
(B) WAIVER OF SOVEREIGN IMMUNITY. TO THE EXTENT THAT ANY PARTY
HERETO HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT
OR FROM ANY LEGAL PROCESS, SUCH PARTY HEREBY WAIVES SUCH IMMUNITY AND AGREES NOT
TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT,
ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF THE COURTS NAMED IN SECTION 5.4(A), THAT IT IS IMMUNE FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF
OR ITS PROPERTY, OR ATTACHMENT EITHER PRIOR TO JUDGMENT OR IN AID OF EXECUTION,
BY REASON OF SOVEREIGN IMMUNITY, OR OTHERWISE, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR ANY OTHER SUPPORT
DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF MAY NOT BE ENFORCED IN OR BY
SUCH COURTS.
SECTION 5.7. SEVERABILITY. In case any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the
14
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 5.8. COUNTERPARTS. This Agreement may be executed in
two or more counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original but all of which when
taken together shall constitute but one contract (subject to Section 5.9), and
shall become effective as provided in Section 5.9. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
SECTION 5.9. BINDING EFFECT; SEVERAL AGREEMENT. This Agreement
shall become effective as to any Subordinated Creditor when a counterpart hereof
executed on behalf of such Subordinated Creditor shall have been delivered to
the Collateral Agent and a counterpart hereof shall have been executed on behalf
of the Collateral Agent, and thereafter shall be binding upon such Subordinated
Creditor and the Collateral Agent and their respective successors and assigns,
and shall inure to the benefit of such Subordinated Creditor, the Collateral
Agent, the other Secured Parties and their respective successors and assigns,
except that no Subordinated Creditor shall have the right to assign or transfer
its rights or obligations hereunder or any interest herein or in the Collateral
(and any such assignment or transfer shall be void) except as expressly
contemplated by this Agreement. This Agreement shall be construed as a separate
agreement with respect to each Subordinated Creditor and may be amended,
modified, supplemented, waived or released with respect to any Subordinated
Creditor without the approval of any other Subordinated Creditor and without
affecting the obligations of any other Subordinated Creditor hereunder.
SECTION 5.10. HEADINGS. Article and Section headings used
herein are for the purpose of reference only, are not part of this Agreement and
are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
15
SECTION 5.11. ADDITIONAL PARTIES. (a) Upon execution by the
Collateral Agent and a creditor of a Loan Party, and delivery by such creditor
to the Collateral Agent, of an instrument in the form of Annex 1 attached
thereto, such creditor shall become a Subordinated Creditor hereunder with the
same force and effect as if originally named as a Subordinated Creditor herein.
The execution and delivery of any such instrument shall not require the consent
of any other Subordinated Creditor hereunder. The rights and obligations of the
Subordinated Creditors herein shall remain in full force and effect
notwithstanding the addition of any Subordinated Creditor as a party to this
Agreement. AT&T agrees that it will not permit any of its subsidiaries (other
than a Loan Party) to become a creditor of any Loan Party in respect of any
Indebtedness or other monetary obligation or liability of such Loan Party that
would constitute a Subordinated Obligation if owed to AT&T, unless such
subsidiary is a party hereto or shall have become a Subordinated Creditor
hereunder as provided above.
(b) The parties hereto acknowledge and agree that each
subsidiary of Holdings that is or becomes a Restricted Subsidiary (as defined in
the Common Agreement) shall be deemed to constitute a Loan Party for all
purposes of this Agreement (whether or not such subsidiary has become a party
hereto), and Holdings agrees to cause any such subsidiary to become a party
hereto and to acknowledge that it is a Loan Party hereunder, pursuant to a
written instrument in form and substance reasonably satisfactory to the Agents,
promptly upon such subsidiary becoming a Restricted Subsidiary.
SECTION 5.12. TERMINATION. This Agreement shall automatically
terminate when all the Obligations have been indefeasibly paid in full in cash
and no Secured Party has any further commitment to extend credit under any
Secured Instrument; however this Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any Obligation is rescinded or must otherwise be restored by any Secured Party
or any Loan Party upon the bankruptcy or reorganization of any Loan Party or
otherwise.
16
IN WITNESS WHEREOF, each Subordinated Creditor, each Loan
Party and the Collateral Agent have caused this Agreement to be duly executed by
their respective authorized representatives as of the day and year first above
written.
LATIN AMERICAN EQUIPMENT
FINANCE B.V.,
By MEESPIERSON TRUST B.V.,
as its Managing Director,
By
----------------------
Name:
Title:
By
----------------------
Name:
Title:
AT&T LATIN AMERICA CORP.,
By
------------------------
Name:
Title:
GLOBAL CARD HOLDINGS INC., as
a Subordinated Creditor,
By
------------------------
Name:
Title:
Address: 0000 X. Xxxxx Xxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx, President
Facsimile: 000-000-0000
17
AT&T CORP., as a Subordinated
Creditor,
BY
--------------------------------
Name:
Title:
Address: 000 X. Xxxxx Xxxxxx
Room 4342I1
Xxxxxxx Xxxxx, XX 00000
Attention: Treasurer
Facsimile: 000-000-0000
With a Copy to:
Address: 000 X. Xxxxx Xxxxxx
Room 1212P2
Xxxxxxx Xxxxx, XX 00000
Attention: Corporate and Securities
Law Group
Facsimile: 000-000-0000
ABN AMRO TRUSTEES LIMITED, as
Collateral Agent,
BY
--------------------------------
Name:
Title:
ATLANTIS HOLDING DO BRASIL
LTDA.,
BY
--------------------------------
Name:
Title:
AT&T DO BRASIL S.A.,
BY
--------------------------------
Name:
Title:
18
AT&T PERU S.A.,
BY
--------------------------------
Name:
Title:
AT&T CHILE HOLDING S.A.,
BY
--------------------------------
Name:
Title:
AT&T CHILE LONG DISTANCE S.A.,
BY
--------------------------------
Name:
Title:
AT&T CHILE NETWORKS S.A.,
BY
--------------------------------
Name:
Title:
AT&T CHILE TELEPHONY S.A.,
BY
--------------------------------
Name:
Title:
AT&T CHILE INTERNET S.A.,
BY
--------------------------------
Name:
Title:
AT&T CHILE WIRELESS S.A.,
BY
--------------------------------
Name:
Title:
19
AT&T COLOMBIA S.A.,
BY
--------------------------------
Name:
Title:
EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE I HERETO,
BY
--------------------------------
Name:
Title: Authorized
Officer
20
SCHEDULE I TO THE
SUBORDINATION AGREEMENT
RESTRICTED SUBSIDIARIES
Jamtis, Inc.
Frantis, Inc.
Jamtis LLC
ATTLA Argentina I, Inc.
ICCA, Ltd.
FirstCom Teleductos Holdings, Ltd.
Cerbay Investment Corp.
Jarsi Finance Corp.
FirstCom Teleductos, Inc.
FirstCom Equipment, Ltd.
SCHEDULE II TO THE
SUBORDINATION AGREEMENT
RESTRICTED SUBSIDIARIES ADDRESS/FAX
----------------------- -----------
Jamtis, Inc. Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Frantis, Inc. Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Jamtis LLC Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Atlantis Holding do Avenida Das Nacoes Unidas
Brasil Ltda. 12.995-18(0)Andar,
Sala "P"
04578-000-Sao Paulo-SP-Brasil
Fax: 000(000) 0000-0000
AT&T do Brasil S.A. Avenida Xxxxxxx Xxxxx
Xx Xxxxx Aranha, 100-Terreo AO
10(0) Andar-Bloco D
04726-170-Sao Paulo-SP-Brasil
Fax: 000(000) 0000-0000
ATTLA Argentina I, Inc. x/x Xxxxxx & Xxxxxx,
Xxxxxx Xxxxx
X.X. Xxx 000 Xxxxxx Xxxx
Grand Cayman,
Cayman Islands
British West Indies
Fax: (000) 000-0000
AT&T Peru S.A. Xx. Xxxxx X(0)0000
Xxxxx Xxxxxx Xxx
Xxxx 00, Xxxx
Fax: 000(000) 000-0000
AT&T Chile Holding S.A. Avenida Vitacura 2939
Piso 0
Xxxxxx xx xxx Xxxxxx,
Xxxxxxxx, Xxxxx
Fax: 000(000) 000-0000
AT&T Chile Long Avenida Vitacura 2939
Distance X.X. Xxxx 0
Xxxxxx xx xxx Xxxxxx,
Xxxxxxxx, Xxxxx
Fax: 000(000) 000-0000
AT&T Chile Networks Avenida Vitacura 2939
X.X. Xxxx 0
Xxxxxx xx xxx Xxxxxx,
Xxxxxxxx, Xxxxx
Fax: 000(000) 000-0000
AT&T Chile Telephony Avenida Vitacura 2939
X.X. Xxxx 0
Xxxxxx xx xxx Xxxxxx,
Xxxxxxxx, Xxxxx
Fax: 000(000) 000-0000
AT&T Chile Internet Avenida Vitacura 2939
X.X. Xxxx 0
Xxxxxx xx xxx Xxxxxx,
Xxxxxxxx, Xxxxx
Fax: 000(000) 000-0000
AT&T Chile Wireless Avenida Vitacura 2939
X.X. Xxxx 0
Xxxxxx xx xxx Xxxxxx,
Xxxxxxxx, Xxxxx
Fax: 000(000) 000-0000
ICCA, Ltd. Citco Building,
Wickhams Cay,
P.O. Box 662 Road Town
Tortola,
British Virgin Islands
Fax: (000) 000-0000
FirstCom Teleductos Citco Building,
Holdings, Ltd. Wickhams Cay,
P.O. Box 662 Road Town
Tortola,
British Virgin Islands
Fax: (000) 000-0000
Cerbay Investment Registered Agent
Corp. Xxxxxx Xxxxxxx & Xxx
Xxxxx Swiss Bank, Piso 2
Xxxxxxxx, Xxxxx 00
Xxxxxx, Xxxxxx
Fax: (000) 000-0000
Jarsi Finance Corp. Registered Agent
Xxxxxx xxxxxxx & Xxx
Xxxxx Swiss Bank, Piso 2
Xxxxxxxx, Xxxxx 00
Xxxxxx, Xxxxxx
Fax: (000) 000-0000
FirstCom Teleductos, Citco Building,
Inc. Wickhams Cay,
P.O. Box 662 Road Town
Tortola,
British Virgin Islands
Fax: (000) 000-0000
AT&T Colombia X.X. Xxxxxxx 0 Xx. 00-00 Xxxxx X,
Xxxx 00
Xxxxxx, Xxxxxxxx
Attn: Xxxxxx Xxxxx Xxxxxxx
Fax: 000(000) 000-0000
FirstCom Equipment, Ltd. Citco Building,
Wickhams Cay,
P.O. Box 662 Road Town
Tortola,
British Virgin Islands
Fax: (000) 000-0000
Annex 1 to the
Subordination Agreement
SUPPLEMENT NO. [ ] dated as of [ ] to the
Subordination Agreement dated as of March 25, 2002,
among LATIN AMERICAN EQUIPMENT FINANCE B.V., a
limited liability company organized under the laws of
the Netherlands (the "BORROWER"), AT&T LATIN AMERICA
CORP., a Delaware corporation ("HOLDINGS"), each
subsidiary of Holdings party thereto or listed on
Schedule I thereto (each such subsidiary individually
a "RESTRICTED SUBSIDIARY" and, collectively, the
"RESTRICTED SUBSIDIARIES" and, together with Holdings
and the Borrower, the "LOAN PARTIES"), GLOBAL CARD
HOLDINGS INC. ("GLOBAL"), AT&T CORP. ("AT&T"), such
other parties as shall become Subordinated Creditors
hereunder, as provided herein, and ABN AMRO TRUSTEES
LIMITED, a limited liability company incorporated
under the laws of England and Wales, as Collateral
Agent (in such capacity, the "COLLATERAL AGENT").
A. Reference is made to (a) the Collateral Agency and Intercreditor
Agreement dated as of March 11, 2002 (as amended, supplemented or otherwise
modified from time to time, the "COLLATERAL AGENCY AGREEMENT") among Holdings,
the Borrower, the Collateral Agent and the Representatives and Unrepresented
Holders referred to therein and (b) the Subordination Agreement dated as of
March 25, 2002 (as amended, supplemented or otherwise modified from time to
time, the "SUBORDINATION AGREEMENT"), among the Loan Parties, the Subordinated
Creditors and the Collateral Agent.
B. Capitalized terms used herein and not defined herein have the
meanings assigned to them in the Collateral Agency Agreement (including by
reference to the Common Agreement referred to therein). The undersigned creditor
(the "NEW SUBORDINATED CREDITOR") acknowledges receipt of a true and correct
copy of each of the Collateral Agency Agreement, the Common Agreement and the
Subordination Agreement.
C. The Subordinated Creditors, Restricted Subsidiaries, Holdings, and
the Borrower have entered into the Subordination Agreement in order to induce
the Lenders to make Loans (as such terms are defined in the Common Agreement).
Section 5.11 of the Subordination Agreement provides that additional creditors
of Holdings may become Subordinated Creditors under the Subordination Agreement
by execution and delivery of an instrument in the form of this
1
Supplement. The New Subordinated Creditor is executing this Supplement in
accordance with the requirements of the Common Agreement and each other Secured
Instrument to become a Subordinated Creditor under the Subordination Agreement
in order to induce the Secured Parties to extend additional credit under the
Secured Instruments and as consideration for credit previously extended.
Accordingly, the Collateral Agent and the New Subordinated Creditor
agree as follows:
SECTION 1. In accordance with Section 5.11 of the Subordination
Agreement, the New Subordinated Creditor by its signature below becomes a
Subordinated Creditor under the Subordination Agreement with the same force and
effect as if originally named therein as a Subordinated Creditor and the New
Subordinated Creditor hereby (a) agrees to all the terms and provisions of the
Subordination Agreement applicable to it as a Subordinated Creditor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Subordinated Creditor thereunder are true and correct on and as of the
date hereof except for representations and warranties which by their terms refer
to a specific date. Each reference to a "Subordinated Creditor" in the
Subordination Agreement shall be deemed to include the New Subordinated
Creditor. The Subordination Agreement is hereby incorporated herein by
reference.
SECTION 2. The New Subordinated Creditor represents and warrants to the
Collateral Agent and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Subordinated Creditor and the
Collateral Agent. Delivery of an executed signature page to this Supplement by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart of this Supplement.
2
SECTION 4. Except as expressly supplemented hereby, the Subordination
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Subordination Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 5.1 of the Subordination Agreement. All
communications and notices hereunder to the New Subordinated Creditor shall be
given to it at the address set forth under its signature below, with a copy to
Holdings.
SECTION 8. The New Subordinated Creditor agrees to reimburse the
Collateral Agent for its reasonable out-of-pocket expenses in connection with
this Supplement, including the reasonable fees, disbursements and other charges
of counsel for the Collateral Agent.
IN WITNESS WHEREOF, the New Subordinated Creditor and the Collateral
Agent have duly executed this Supplement to the Subordination Agreement as of
the day and year first above written.
[NAME OF NEW SUBORDINATED
CREDITOR],
By
------------------------------
Name:
Title:
Address:
3
ABN AMRO TRUSTEES LIMITED, as
Collateral Agent,
By
------------------------------
Name:
Title:
4
