SPONSOR PLEDGE AND SECURITY AGREEMENT
This SPONSOR PLEDGE AND SECURITY AGREEMENT, dated as of
October 31, 2000 (as amended, supplemented, restated or otherwise modified, this
"AGREEMENT"), between MAGNUM TELECOM LIMITED, a British Virgin Islands company
(the "GRANTOR") in favor of THE CHASE MANHATTAN BANK, as Collateral Agent (the
"COLLATERAL AGENT") under the Collateral Agency and Intercreditor Agreement (as
defined below)forthe benefit of the Secured Parties thereunder.
RECITALS:
WHEREAS, reference is made to (i) that certain Common Terms
Agreement, dated as of October 31, 2000 (as amended, modified and supplemented
from time to time, the "COMMON TERMS AGREEMENT"), by and among Global Village
Telecom Ltda. ("GVT"), GVT Holding Ltda. ("GVT (BRAZIL)"), Global Village
Telecom (Holland) B.V. ("GVT (HOLLAND)"), GVT (Holding) N. V. ("GVT
(ANTILLES)"), Nortel Networks Limited ("NORTEL"), as Agent for itself (in such
capacity, together with its successors in such capacity, the "NORTEL FACILITY
AGENT") and as initial purchaser under the Nortel Note Purchase Agreement,
together with the other purchasers from time to time party thereto (the "NORTEL
PURCHASERS"), ECI Telecom Ltd ("ECI"), as Agent for itself (in such capacity,
together with its successors in such capacity, the "ECI FACILITY AGENT") and as
initial purchaser under the ECI Note Purchase Agreement, together with the other
purchasers from time to time party thereto (the "ECI PURCHASERS"), Harris
Corporation ("HARRIS"), as Agent for itself (in such capacity, together with its
successors in such capacity, the "HARRIS FACILITY AGENT") and as initial
purchaser under the Harris Note Purchase Agreement, together with the other
purchasers from time to time party thereto (the "HARRIS PURCHASERS"), and the
Collateral Agent; (ii) that certain Capital Contribution Agreement, dated as of
October 31, 2000 (as amended, modified and supplemented from time to time, the
"CAPITAL CONTRIBUTION AGREEMENT"), by and among GVT, GVT (Brazil), GVT
(Holland), GVT (Antilles), the Sponsors, the Facility Agents and the Collateral
Agent; and (iii) that certain Note Repurchase Agreement, dated as of October 31,
2000 (as amended, modified and supplemented from time to time, the "NOTE
REPURCHASE AGREEMENT") by and among GVT, the Committed Sponsors, the Facility
Agents and the Collateral Agent; and
WHEREAS, the Grantor is a Committed Sponsor and, as required
pursuant to Section 5.01 of the Capital Contribution Agreement, the Grantor is
required to secure its obligations under the Capital Contribution Documents as
set forth herein;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the Grantor and the
Collateral Agent agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION.
SECTION 1.1 DEFINITIONS. (a) As used in this Agreement the
following terms shall have the following meanings:
"AGENT" shall have the meaning given thereto in the Collateral
Agency and Intercreditor Agreement.
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"AGREEMENT" shall have the meaning set forth in the preamble.
"APPLICABLE VALUE" shall mean each of the Collateral Value and
the Delivery Amount.
"CAPITAL CONTRIBUTION AGREEMENT" shall have the meaning set
forth in the first recital.
"CASH" means immediately available cash funds in Dollars.
"CASH COLLATERAL ACCOUNT" shall mean account number C42677E
Magnum Pledge Account (GVT)with The Chase Manhattan Bank, 450 West 33 rd Street,
New York, NY 10001 in the name of the Collateral Agent and subject to the terms
of the Cash Collateral Account Agreement. Such account may be a "Chase Cash
Escrow."
"CASH COLLATERAL ACCOUNT AGREEMENT" shall mean the Cash
Collateral Account Control Agreement dated as of October 31, 2000 between the
Grantor and the Collateral Agent, in Substantially the form of Exhibit B
attached hereto, which may be amended pursuant to the terms thereof and the
Collateral Agency and Intercreditor Agreement (with the consent, or instruction,
of the Required Holders thereunder).
"CLOSING PRICE" shall mean, as of any Valuation Date, with
respect to any Posted Securities, the closing bid price of such securities on
the Business Day immediately preceding such Valuation Date as quoted or obtained
from or supplied by a Pricing Service.
"COLLATERAL" shall have the meaning set forth in Section 2.1.
"COLLATERAL ACCOUNTS" shall mean the Cash Collateral Account,
the Collateral Securities Account and any other account in the name of the
Collateral Agent pursuant to a Collateral Document.
"COLLATERAL DOCUMENT" shall mean, each of the Cash Collateral
Account Agreement, the Collateral Securities Account Agreement and any other
agreement or document in form and substance reasonably satisfactory to the
Collateral Agent and each of the Facility Agents in which Collateral may be
held, controlled or deposited and in which (together with the Collateral) the
Collateral Agent shall have a valid, first priority perfected security interest
(which in the case of any cash, deposit account or securities account shall
include the Collateral Agent having both sole dominion and control over such
account (within the meaning of the common law) and "control" (as defined in
Section 9-104 of Revised Article 9)).
"COLLATERAL SECURITIES ACCOUNT" shall mean securities account
number C42677E Magnun Pledge Account (GVT) with the Chase Manhattan Bank, 450
West 33rd Street, New York, New York 10001, in the name of the Collateral Agent
and subject to the terms of the Collateral Securities Account Agreement.
"COLLATERAL SECURITIES ACCOUNT AGREEMENT" shall mean the
Securities Account Control Agreement dated as of October 31, 2000 between the
Grantor, the Securities Intermediary and the Collateral Agent, in substantially
the form of Exhibit A attached hereto,
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which may be amended pursuant to the terms thereof and the Collateral Agency and
Intercreditor Agreement (with the consent, or instruction, of the Required
Holders thereunder).
"COLLATERAL VALUE" shall have the meaning set forth in Section
3.1(a).
"COMMON TERMS AGREEMENT" shall have the meaning set forth in
the first recital.
"DELIVERY AMOUNT" shall have the meaning set forth in Section
3.1(c).
"DOLLARS" shall mean lawful money of the United States of
America.
"DOLLAR EQUIVALENT" shall mean, as of any Valuation Date, the
amount of Dollars which could be purchased with the amount of Euros involved in
such computation at the spot exchange rate therefor as quoted by The Chase
Manhattan Bank (or any other bank acceptable to the Required Holders in their
sole discretion) as of 11: 00 A. M. (Paris time) on the date two (2) Business
Days prior to such Valuation Date.
"EURO" shall mean the single currency of the participating
member states of the European Union.
"EURO COLLATERAL VALUE" shall mean, with respect to any Posted
Securities having a value in, and traded in, Euros, as of any Valuation Date, an
amount expressed in Euros equal to (x) the number of shares or units of such
securities constituting Posted Securities multiplied by (y) the Closing Price of
such security with respect to such Valuation Date.
"EURO EQUIVALENT " shall mean, as of any Valuation Date, the
amount of Euros which could be purchased with the amount of Dollars involved in
such computation at the spot exchange rate therefor as quoted by The Chase
Manhattan Bank (or any other bank acceptable to the Required Holders in their
sole discretion) as of 11:00 a.m. (New York time) on the date two Business Days
prior to such Valuation Date.
"EXCHANGE FACTOR" shall mean (a) at any time when no Default
or Event of Default and no SPA Default or SPA Event of Default shall have
occurred and is continuing, 99%, and (b) at any other time, 95%.
"ISSUER" shall mean each issuer of the capital stock
constituting the Posted Securities.
"GRANTOR" shall have the meaning set forth in the preamble.
"LETTER OF CREDIT" means any unconditional irrevocable
stand-by letter of credit which:
(i) has been issued by either (A) any of the banks listed on Schedule
1.1(e) of the Common Terms Agreement, as such list may be modified from time to
time by the Collateral Agent at the direction of the Required Purchasers, or (B)
any other commercial
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bank acceptable to the Required Purchasers in their reasonable judgment (subject
to any internal credit policies of any Purchaser);
(ii) provides (A) the Grantor (or any Affiliate of the Grantor other
than a GVT Party) as the account party, and (B) the Collateral Agent as
beneficiary thereof for the benefit of the Secured Parties;
(iii) has a maturity or expiration date at least 364 days from the date
of issuance and shall contain automatic renewal provisions for at least an
additional 364 days;
(iv) provides that the issuer of such letter of credit shall be
required to notify the Company and the Collateral Agent not earlier than ninety
(90) days, and not later than sixty (60) days, prior to the stated expiration or
maturity of such letter of credit and whether such issuer has irrevocably and
unconditionally renewed such letter of credit or issued a new or replacement
letter of credit;
(v) unless otherwise agreed by the Collateral Agent at the direction of
the Required Purchasers, shall be governed by the Uniform Customs and Practice
for Documentary Letters of Credit (the "Uniform Customs "), and to the extent
not addressed by the Uniform Customs, governed by New York law, and will contain
an express waiver of Section 5-112 of New York Uniform Commercial Code (or any
similar or replacement provision therefor);
(vi) provides that upon presentation of a drawing certificate at the
issuer's office or branch in New York, New York, the proceeds of such letter of
credit shall be in Dollars and paid within one (1) Business Day to, or as
directed by, the Collateral Agent for the benefit of the Secured Parties, which
drawing certificate shall state that either (A) an SPA Event of Default has
occurred and is continuing, or (B) the Grantor has failed to cause the
applicable Letter of Credit to be renewed or replaced by another Letter of
Credit or other Collateral at least thirty (30) days prior to the stated
maturity or expiration thereof; and
(vii) shall otherwise be in form and substance reasonably satisfactory
to the Collateral Agent and each of the Facility Agents.
"MINIMUM VALUE" means, as of any Valuation Date, the amount in
Dollars set forth opposite such time to time in accordance with Section 3.5.
"NOTE REPURCHASE AGREEMENT" shall have the meaning set forth
in the first recital.
"NOTIFICATION TIME" shall mean, with respect to any day, 1:00
p.m., New York time, on such day.
"ORGANIZATIONAL DOCUMENTS" shall mean the bylaws, articles of
association and other charter documents of each Issuer.
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"PARTIAL RELEASE" shall mean a partial release delivered by
the Collateral Agent in substantially the form of Exhibit C attached hereto.
"PERMITTED RELEASE VALUE" means for any Valuation Date an
amount equal to 110% of the Minimum Value.
"PLEDGE SUPPLEMENT" shall mean a pledge supplement delivered
by the Grantor to the Collateral Agent in substantially the form of Exhibit D
attached hereto.
"POSTED SECURITIES" shall mean the sum of all Qualified
Securities that have been Transferred to the Collateral Securities Account or
the Collateral Agent pursuant to a Pledge Supplement and all proceeds thereof.
"PRICING SERVICE" shall mean any of (a) the Bloomberg service;
or (b) if the service listed in subsection (a) above in not available, the
"Exshare" service provided by Extel; or (c) if neither one of the services
listed in subsections (a) and (b) above is available, any other pricing service
approved by the Required Holders under the Collateral Agency and Intercreditor
Agreement.
"QUALIFIED SECURITIES" shall mean (a) at any time, the shares
of voting common stock of any corporation whose shares are registered with the
SEC and publicly traded for Dollars and freely transferable on an
internationally recognized stock exchange in the United States of America, such
shares shall not constitute (i)greater than 4.9% of the total issued and
outstanding shares of such corporation, (ii) "restricted securities" for
purposes of Rule 144 of the Rules and Regulations under the Securities Act of
1933, as amended, and (iii) together with all other such shares beneficially
owned by the Grantor, greater than 9.9% of the total issued and outstanding
shares of such corporation, and (b) the Shares listed on Schedule A attached
hereto as of the date hereof.
"RELEASE AMOUNT" shall have the meaning set forth in Section
3.1(c).
"RELEASE CONDITION" shall mean, with respect to any Valuation
Date, on each of the two (2) Valuation Dates immediately preceding such
Valuation Date, the Collateral Value on each such prior Valuation Date shall
have been greater than or equal to the Permitted Release Value.
"REQUIRED HOLDERS" shall have the meaning given to such term
in the Collateral Agency and Intercreditor Agreement.
"REQUIRED VALUE" means for any Valuation Date an amount equal
to 105% of the Minimum Value.
"REVISED ARTICLE 9" shall mean the 1999 Official Text of
Article 9 of the Uniform Commercial Code with conforming amendments to Articles
1, 2, 2a, 4, 5, 6, 7 and 8.
"SECURED OBLIGATIONS" shall have the meaning set forth in
Section 2.1.
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"SECURED PARTIES" shall have the meaning given thereto in the
Collateral Agency and Intercreditor Agreement.
"SPA DEFAULT" shall mean any condition or event that, with the
giving of notice or lapse of time or both, would become a SPA Event of Default.
"SPA EVENT OF DEFAULT" means the failure of the Grantor to pay
or perform any of its obligations under any of the Capital Contribution
Documents.
"TRANSFER" shall mean with respect to any Posted Securities,
Cash or Letter of Credit, and in accordance with the instructions of the
Collateral Agent or the Grantor (solely in the case of a Partial Release), as
applicable:
(a) in the case of certificated securities that cannot be paid
or delivered by bookentry, actual payment or delivery in appropriate
physical form to the Collateral Agent or the appropriate Collateral
Account (or, in the case of a Partial Release, to the Grantor or its
agent designated pursuant to Section 3.3 or its account as designated
in writing) accompanied by any duly executed instruments of transfer,
assignments in blank, transfer tax stamps and any other documents
necessary to constitute a legally valid transfer to the recipient;
(b) in the case of securities that can be paid or delivered by
book-entry, the transfer of such securities to the Collateral
Securities Account and the registration thereof in the name of the
Collateral Agent (or, in the case of a Partial Release, delivery by the
Grantor of written instructions to the Collateral Agent to transfer
such securities to its designated recipient or its account as
designated in writing, with a copy of such instructions to such
recipient, sufficient if complied with to result in a legally effective
transfer of the relevant interest to the recipient);
(c) in the case of Cash, payment or delivery by wire transfer
of Cash into the Cash Collateral Account (or, in the case of a Partial
Release, into the account specified in writing by the Grantor); and
(d) in the case of a Letter of Credit, by delivery of such
Letter of Credit to the Collateral Agent;
provided, that in the case of any transfer contemplated in clauses (a), (b) and
(c) above to the Collateral Agent or any Collateral Account, such transfer shall
only be a "Transfer" if the Collateral Agent shall have a valid, first priority
perfected security interest in the applicable securities or Cash.
"TRANSFER DATE" shall mean the date occurring three (3)
Business Days after any Valuation Date.
"UCC" shall mean the Uniform Commercial Code as in effect from
time to time in the State of New York or, when the context implies, the Uniform
Commercial Code as in effect from time to time in any other applicable
jurisdiction.
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"VALUATION DATE" shall mean (a) Closing Date, and (b)
thereafter, the 15th day and the last day of each calendar month commencing
November 15, 2000 or if such date is not a Business Day, the first Business Day
immediately preceding such date; provided , that for purposes of calculating the
Minimum Value, Valuation Date shall mean the 15th day and the last day of each
calendar month regardless of whether such day is a Business Day.
(b) Capitalized terms used and not defined herein shall have
the meanings ascribed to such terms in the Capital Contribution Agreement or, if
not defined therein, in the Common Terms Agreement. All other capitalized terms
used herein and not otherwise defined herein, in the Capital Contribution
Agreement or the Common Terms Agreement, shall have the meanings ascribed
thereto in the UCC or the Revised Article 9.
SECTION 1.2 INTERPRETATION. References to "Sections" shall be
to Sections of this Agreement unless otherwise specifically provided. Section
headings in this Agreement are included herein for convenience of reference only
and shall not constitute a part of this Agreement for any other of the UCC shall
any Article of the UCC.
SECTION 2. GRANT OF SECURITY; GRANTOR REMAINS LIABLE
SECTION 2.1 GRANT OF SECURITY. The Grantor hereby grants,
assigns and pledges to the Collateral Agent, for the ratable benefit of the
Secured Parties, a security interest and continuing lien on all of such
Grantor's right, title and interest in, to and under all Posted Securities, the
Collateral Securities Account, all Cash deposited in or credited to the Cash
Collateral Account, the Cash Collateral Account Agreement, all other property
and assets in any other Collateral Accounts, any other Collateral Documents, the
proceeds of each Letter of Credit and all income, profits, dividends,
distributions and any other amounts received in respect thereof (whether in
cash, property or assets, including any securities) and all proceeds of all of
the foregoing (collectively, the "COLLATERAL") to secure, and the Posted
Securities and such other Collateral shall be collateral security for, the
prompt and complete payment or performance in full when due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise
(including the payment of amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
ss.362(a)), of all obligations of the Grantor under the Capital Contribution
Documents (the "SECURED OBLIGATIONS").
SECTION 2.2 GRANTOR REMAINS LIABLE. (a) Notwithstanding
anything to the contrary:
(i) the Grantor shall remain liable under the Organizational
Documents relating to the Posted Securities, to the extent set forth
therein, to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed;
(ii) the exercise by the Collateral Agent of any of its rights
hereunder shall not release the Grantor from any of its duties or
obligations under the Organizational Documents; and
(iii) the Collateral Agent shall not have any obligation or
liability under the Organizational Documents relating to the Posted
Securities, nor shall the Collateral Agent
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be obligated to perform any of the obligations or duties of the Grantor
thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
(b) Neither the Collateral Agent nor any purchaser at a
foreclosure sale under this Agreement shall be obligated to assume any or all of
the obligations or liabilities under the Organizational Documents relating to
the Posted Securities, unless the Collateral Agent or any such purchaser
otherwise expressly agrees in writing to assume any or all of said obligations.
SECTION 3. COLLATERAL
SECTION 3.1 VALUATION. (a) On each Valuation Date, the
Collateral Agent shall determine the value of the Collateral subject to Section
3.1(b), as follows:
(i) with respect to any security, by multiplying the number of
shares or units of such security constituting Posted Securities by the
Closing Price of such security with respect to such Valuation Date;
(ii) with respect to Cash, the amount of Cash on deposit in
the Cash Collateral Account in immediately available funds on such
Valuation Date; and
(iii) with respect any Letter of Credit, the amount available
to be drawn under such Letter of Credit.
The Collateral Agent shall determine the aggregate value of all Collateral by
adding the aggregate amounts described in clauses (i), (ii) and (iii)above with
respect to such Collateral (such sum, the "Collateral Value").
(b) Each of the Collateral Value, the Delivery Amount and the
Release Amount and each of the Minimum Value, the Permitted Release Value and
the Required Value shall be in Dollars or, solely to the extent provided in this
Section 3.1(b), in Dollar Equivalent. All Collateral shall be in, have a value
in, or be traded in, in Dollars; provided , that solely with respect to the
Posted Securities listed on Schedule A attached hereto as of the date hereof,
the portion of the Posted Securities thereon as being traded on the Paris Stock
Exchange, such Posted Securities may have a value in, and be traded in, Euros.
For purpose of determining the Applicable Value of any securities having a value
in, and traded in, Euros, such Posted Securities shall be deemed to be equal to
(x) the Dollar Equivalent of the Euro Collateral Value of such securities,
multiplied by (y) the applicable Exchange Factor. For purpose of determining the
Release Amount of any securities having a value in, and traded in, Euros, such
securities shall be deemed to be equal to the Dollar Equivalent of the Euro
Collateral Value of such securities.
(c) Upon determining the Collateral Value of the Collateral on
any Valuation Date, the Collateral Agent shall determine the following amounts
on such Valuation Date:
(i) if the Collateral Value shall be less than the Required
Value, an amount equal to (the "DELIVERY AMOUNT") (x) the Required
Value minus (y) the Collateral Value;
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(ii) if the Collateral Value shall be greater than or equal to
the Permitted Release Value on such Valuation Date, an amount equal to
(the "RELEASE AMOUNT") (A) in the event that the Release condition
shall have been satisfied, the sum of (x) the Collateral Value minus
(y) the Required Value or (B) in the event that the Release Condition
shall not have been satisfied, the sum of (x) the Collateral Value
minus (y) the Permitted Release Value; and
(iii) if the Collateral Value shall be (x) equal to or greater
than the Required Value and (y) less than the Permitted Release Value,
the Delivery Amount shall be equal to zero and the Release Amount shall
be equal to zero.
(d) On or prior to the Notification Time on each Valuation
Date, the Collateral Agent shall notify the Grantor and each Agent in accordance
with the provisions of the Collateral Agency and Intercreditor Agreement of the
Collateral Value and the Delivery Amount (if any) or the Release Amount (if any)
by delivering a valuation certificate to each such Person in substantially the
form attached hereto as Exhibit E.
(e) The Grantor shall be deemed, on each Valuation Date, to
represent and warrant that (i) each of the representations and warranties of the
Grantor herein are true, correct and complete as of such Valuation Date (except
to the extent relating to another specific date), and it is in compliance with
of its agreements and covenants set forth in this Agreement.
(f) The Grantor shall have entered into the Collateral
Securities Account Agreement, the Cash Collateral Account Agreement and any
other Collateral Document reasonably required by the Required Purchasers.
SECTION 3.2 GRANT OF COLLATERAL. (a) On or prior to the
Closing Date, the Grantor shall have Transferred any combination of Qualified
Securities, Cash and Letters of Credit to the Collateral Agent or any Collateral
Account having a Collateral Value equal to at least the Required Value and shall
have delivered a Pledge Supplement pledging all such Qualified Securities, Cash
and Letters of Credit as Collateral and the Collateral Agent shall have a valid,
first priority perfected security interest in all such Collateral.
(b) No later than 11:00 a.m. New York time on each Transfer
Date, the Grantor shall promptly Transfer any combination of Qualified
Securities, Cash and Letters of Credit to the Collateral Agent or any Collateral
Account having a Collateral Value as of the applicable Valuation Date at least
equal to the Delivery Amount and shall have delivered a Pledge Supplement
pledging all such Qualified Securities, Cash and Letters of Credit as Collateral
and the Collateral Agent shall have a valid, first priority perfected security
interest in all such Collateral and such Transfer shall have been fully effected
by no later than 2:00 p.m. (New York Time), on such Transfer Date.
(c) The Grantor agrees that at all times with respect to any
Collateral it shall comply with the provisions of this Section 3.2(c). With
respect to any Posted Securities that are represented by a certificate or that
is an "instrument" (other than any Posted Securities credited to a Collateral
Securities Account) it shall cause such certificate or instrument to be
delivered to the Collateral Agent, indorsed in blank by an "effective
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indorsement" (as defined in Section 8-107 of the UCC), regardless of whether
such certificate constitutes a "certificated security" for purposes of the UCC.
In addition to the foregoing, if any Issuer of any Posted Securities is located
in a jurisdiction outside of the United States, the Grantor shall take such
additional actions, including, without limitation, causing the Issuer to
register the pledge on its books and records or making such filings or
recordings, in each case as may be necessary or advisable, under the laws of
such issuer's jurisdiction to insure the validity, perfection and priority of
the security interest of the Collateral Agent. All Posted Securities which are
not represented by a certificate or which are not "instruments" shall be
registered in the name of the Collateral Agent or the name of its nominee or
agent. In addition, the Collateral Agent shall have the right at any time,
without notice to the Grantor, to exchange any certificates or instruments
representing any Posted Securities for certificates or instruments of smaller or
larger denominations. At any time while a Default, Event of Default, SPA Default
or SPA Event of Default shall have occurred and is continuing, all income,
profits, dividends, distributions and any other amounts received in respect of
any Collateral and the proceeds of any Collateral shall be held by the
Collateral Agent for the benefit of the Secured Parties pursuant to any
applicable Collateral Document or shall be deposited or Transferred to any
applicable Collateral Account.
SECTION 3.3 RELEASE OF COLLATERAL. If the Release Amount shall
be greater than zero and no SPA Default or SPA Event of Default shall have
occurred and be continuing, no later than 11:00 a.m. New York time on the
Transfer Date with respect to any Valuation Date the Grantor may request that
the Collateral Agent release any combination of Posted Securities and Cash held
in a Cash Collateral Account having a Collateral Value as of the applicable
Valuation Date in an amount not to exceed such Release Amount and the Collateral
Agent shall effect such Transfer and deliver a Partial Release no later than
2:00 p.m. (New York time) on the date occurring three (3) Business Days after
such Transfer Date in respect thereof. The release of any Collateral subject to
a Partial Release requiring the physical delivery of such Collateral to the
Grantor or its agent shall be made to the Grantor or its agent specifically
designated in writing by the Grantor for receipt thereof in New York, New York
and the Grantor agrees that either it or such agent shall be available in New
York to accept such delivery and that until such time as the Grantor or such
agent is not so available, the Collateral Agent shall have no obligations to
Transfer such Collateral to the Grantor.
SECTION 3.4 [RESERVED]
SECTION 3.5 MINIMUM VALUES. The Minimum Values set forth on
Schedule B attached hereto are intended to be an amount equal, as of any
Valuation Date, to the aggregate amount of the Scheduled Sponsor Contribution
Amounts of the Grantor under the Capital Contribution Agreement during the
twelve (12) month period following such date. If the Scheduled Sponsor
Contribution Amounts of the Grantor under the Capital Contribution Agreement
shall have been reduced by any Sponsor Reduction Amount in accordance with
Section 2.02 of the Capital Contribution Agreement, the Grantor may deliver
notice thereof to the Collateral Agent, each of the Facility Agents and the
Company and such notice shall also specify the aggregate amount of the
applicable Reduction Amount and have attached thereto a proposed replacement
Schedule B. Upon receipt by the Collateral Agent of a certificate of the Grantor
confirming the aggregate amount of the Sponsor Reduction Amount and confirmation
from each of the Facility Agents (which confirmation or rejection shall be
delivered promptly be each Facility Agent) that the proposed replacement
Schedule B is correct, replacement Schedule
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B attached hereto shall thereupon be amended and restated as set forth in the
proposed Schedule B.
SECTION 3.6 COLLATERAL AGENT DETERMINATIONS. Each of the
Grantor and the Collateral Agent agrees that all determinations and calculations
of any Collateral Value shall be final and conclusive absent manifest error.
SECTION 4. REPRESENTATIONS AND WARRANTIES; COVENANTS.
SECTION 4.1 GENERALLY.
(a) The Grantor hereby represents and warrants, as of the date
of this Agreement and as of each Valuation Date, that:
(i) it is the legal and beneficial owner of the Posted
Securities and the Shares listed on Schedule A hereto, free and clear
of all liens, encumbrances, rights or claims of other Persons and
Posted Securities are fully paid and non-assessable and constitutes the
number of issued and outstanding shares or units of the security of the
Issuer represented in any Pledge Supplement;
(ii) there are no (A) outstanding options or other rights of
any kind, whether contingent or otherwise, of any other Person to
purchase or acquire any Posted Securities or any right, title or
interest therein, (B) obligations, whether contingent or otherwise, to
sell, transfer, pledge or otherwise dispose of any Posted Securities or
any right, title or interest therein (except as provided in this
Agreement and the other Collateral Documents), (C) shareholder
agreements, voting trust agreements, participation agreements or any
similar agreements outstanding with respect to any Posted Securities or
any right, title or interest therein and no Person (other than the
Grantor and the Collateral Agent as provided in this Agreement and the
other Collateral Documents) has any right, title or interest in, to or
under any Posted Securities, whether direct or indirect, and (D) there
are no restrictions or limitations, whether contractual, by law or
otherwise, which would affect the pledge and grant of a security
interest in any Collateral, the perfection of any such pledge or
security interest or the ability of the Collateral Agent to sell,
foreclose or otherwise realize upon any of the Collateral other than
those imposed by applicable securities laws of the jurisdiction of the
Issuer's organization which have been previously disclosed in writing
to the Collateral Agent and each of the Facility Agents;
(iii) no consent of any Person is necessary or desirable in
connection with the creation, perfection or first priority status of
the security interest of the Collateral Agent in the Collateral or,
with respect to any Posted Securities, the exercise by the Collateral
Agent of the voting or other rights provided for in this Agreement or
the exercise of remedies in respect thereof;
(iv) the chief executive office of the Grantor is, and has
been for the four (4) month period preceding the date hereof, the
location set forth on Schedule C hereto;
(v) the full legal name of the Grantor is as set forth in the
preamble to this Agreement and it has not in the last five (5) years
done and does not do business under
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any other name (including any trade-name or fictitious business name)
except for such names set forth on Schedule C attached hereto;
(vi) the Grantor has not within the last five (5) years become
bound (whether as a result of merger or otherwise) as debtor under a
security agreement entered into by itself or another Person covering
the Posted Securities other than any such security agreement that has
been terminated in writing by the parties thereto and all
registrations, filings and other actions to maintain or perfect an
interest therein have been terminated;
(vii) all actions and consents, including all filings,
notices, registrations and recordings necessary or desirable to create,
perfect or insure the first priority of the security interest in all
Collateral granted to the Collateral Agent hereunder or for the
exercise by the Collateral Agent of the voting or other rights,
remedies or powers provided for in this Agreement or the exercise of
remedies in respect of any Collateral have been made or obtained
including, without limitation, any filings, notices, negotiations or
recordings necessary under the laws under which each Issuer is
organized;
(viii) no effective UCC financing statement, mortgage, charge
or other instrument similar in effect under any applicable law covering
all or any part of the Posted Securities or, solely as of the date
hereof, the Shares listed on Schedule A hereto, is on file in any
filing or recording office (other than any naming the Collateral Agent
as Collateral Agent) in any jurisdiction;
(ix) The Grantor has taken all actions necessary or desirable
to: (a) establish the Collateral Agent's "control" (within the meaning
of Section 9-115 of the UCC) over any portion of the Posted Securities
held in the Collateral Securities Account; and (b) establish the
Collateral Agent's sole dominion and control over the Cash Collateral
Accounts.
(b) COVENANTS AND AGREEMENTS. The Grantor hereby covenants and
agrees that:
(i) without the prior written consent of the Collateral Agent,
it shall not vote or take any other action to: (A) amend or terminate
the Organizational Documents of any Issuer in any way that materially
changes the rights of the Grantor with respect to the Posted Securities
or adversely affects (x) the validity, perfection or priority of the
Collateral Agent's security interest in the Collateral or (y) the
rights, remedies or powers of the Collateral Agent with respect
thereto, including, without limitation, the ability to sell or
foreclose on any Collateral or to otherwise realize upon any of the
Collateral, (B) to the extent it is able, permit any Issuer to issue
any additional shares or other equity interests of any nature or to
issue securities convertible into or granting the right of purchase or
exchange for any shares or other equity interest of any nature of such
Issuer, (C) to the extent it is able, permit any Issuer to dispose of
all or a material portion of its assets, (D) waive any default under or
breach of any terms of the Organization Documents relating to any
Issuer, or (E) cause any Issuer to elect or otherwise take any action
in respect of any Posted Securities, the effect of which would be to
adversely affect (x) the validity, perfection or priority of any
security interest (or the ability to
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create a valid, first priority perfected security interest in favor of
the Collateral Agent) of the Collateral Agent in any Collateral or (y)
the ability to sell or foreclose on any Collateral or to otherwise
realize upon any of the Collateral;
(ii) the Grantor shall cause all distributions, dividends or
interest in respect of any Collateral, (A) to the extent not already
provided for or required, to be Transferred to the Collateral Agent or
a Collateral Account and (B) to be subject to a valid, first priority
security interest in favor of the Collateral Agent and pending any such
action, such Grantor shall hold all such distributions, interest,
securities or other property that it receives (or which is otherwise
received for its benefit) in trust for the benefit of the Collateral
Agent and shall be segregated from all other property of such Grantor
notwithstanding the foregoing, so long as no SPA Event of Default shall
have occurred and be continuing, the Grantor shall retain all ordinary
dividends paid in the normal course of the business of the Issuer;
(iii) it shall comply with all of its obligations under the
Organizational Documents relating to the Posted Securities and shall
enforce all of its rights with respect to the Posted Securities;
(iv) without the prior written consent of the Collateral
Agent, it shall not vote any Posted Securities to permit any Issuer to
merge or consolidate unless all the outstanding capital stock or other
equity interests of the surviving or resulting corporation, limited
liability company, partnership or other entity is, upon such merger or
consolidation, pledged hereunder and no cash, securities or other
property is distributed in respect of the outstanding equity interests
of any other constituent company;
(v) the Grantor consents to the transfer of the Posted
Securities to the Collateral Agent following an SPA Event of Default
and shall cause each Issuer to take such actions as are necessary to
permit the substitution of the Collateral Agent as a shareholder of
such Issuer with all the rights and powers related thereto;
(vi) except for the security interest created by this
Agreement, it shall not create or suffer to exist any lien, claim or
encumbrance upon, or with respect to any of, Posted Securities and
shall defend the Posted Securities against all Persons at any time
claiming any interest therein;
(vii) it shall not use or permit any Posted Securities to be
used unlawfully or in violation of any provision of this Agreement or
any applicable statute, regulation or ordinance or any policy of
insurance covering the Posted Securities;
(viii) it shall not change its name, identity, corporate
structure, chief place of business, chief executive office or situs or
establish any trade names unless it shall have first (A) notified the
Collateral Agent and each Agent in writing, at least thirty (30) days
prior to any such change or establishment, identifying such new
proposed name, identity, corporate structure, chief place of business,
chief executive office, situs or trade name and providing such other
information in connection therewith as the Collateral Agent may
reasonably request and (B) taken all actions necessary or advisable to
maintain the
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continuous validity, perfection and the same or better priority of the
Collateral Agent's security interest in the Collateral intended to be
granted and agreed to hereby;
(ix) it shall pay promptly when due all property and other
taxes, assessments and governmental charges or levies imposed upon, and
all claims against, any and all Collateral, except to the extent the
validity thereof is being contested in good faith and appropriate
reserves with respect thereto are being maintained; provided, the
Grantor shall in any event pay such taxes, assessments, charges, levies
or claims not later than five (5) days prior to the date of any
proposed sale under any judgement, writ or warrant of attachment
entered or filed against the Grantor or any of the Posted Securities as
a result of the failure to make such payment;
(x) upon the Grantor obtaining knowledge thereof, it shall
promptly notify the Collateral Agent in writing of any event that may
materially and adversely affect the ability of the Grantor or the
Collateral Agent to dispose of the Collateral or any portion thereof,
or the rights and remedies of the Collateral Agent in relation thereto,
including, without limitation, the levy of any legal process against
the Posted Securities or any portion thereof;
(xi) it shall not take or permit any action which could impair
the Collateral Agent's rights in the Collateral; and
(xii) it shall not sell, transfer or assign or grant any
option with respect to (by operation of law or otherwise) any Posted
Securities, except as expressly permitted herein.
(c) VOTING AND DISTRIBUTIONS.
(i) So long as no SPA Event of Default shall have occurred and
be continuing:
(A) the Grantor shall be entitled to exercise or
refrain from exercising any and all voting and other
consensual rights pertaining to the Posted Securities
for any purpose not inconsistent with the terms of
this Agreement and the other Note Documents;
provided, the Grantor shall not exercise or refrain
from exercising any such right if such action could
reasonably be expected to have a material adverse
effect on the value of the Posted Securities; and
(B) the Collateral Agent shall promptly execute and
deliver (or cause to be executed and delivered) to
the Grantor all proxies, and other instruments as the
Grantor may from time to time reasonably request for
the purpose of enabling the Grantor to exercise the
voting and other consensual rights when and to the
extent which it is entitled to exercise pursuant to
clause (A) above;
(ii) Upon the occurrence and during the continuation of an SPA
Event of Default:
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(A) all rights of the Grantor to exercise or refrain
from exercising the voting and other consensual
rights which it would otherwise be entitled to
exercise pursuant hereto shall cease and all such
rights shall thereupon become vested in the
Collateral Agent who shall thereupon have the sole
right to exercise such voting and other consensual
rights as directed by the Required Holders; and
(B) in order to permit the Collateral Agent to
exercise the voting and other consensual rights which
it may be entitled to exercise pursuant hereto and to
receive all dividends and other distributions which
it may be entitled to receive hereunder, the Grantor
shall promptly execute and deliver (or cause to be
executed and delivered) to the Collateral Agent all
proxies, dividend payment orders and other
instruments as the Collateral Agent may from time to
time reasonably request.
SECTION 5. FURTHER ASSURANCES.
SECTION 5.1 FURTHER ASSURANCES.
(a) The Grantor agrees that from time to time, at the expense
of the Grantor, it shall promptly execute and deliver all further instruments
and documents, and take all further action, that may be necessary or desirable,
or that the Collateral Agent may reasonably request, in order to create and/or
maintain the validity, perfection or priority of and protect any security
interest granted or purported to be granted hereby or to enable the Collateral
Agent to exercise and enforce its rights and remedies hereunder with respect to
any Posted Securities. Without limiting the generality of the foregoing, the
Grantor shall:
(i) execute and file such financing or continuation
statements, or amendments thereto, and execute and deliver such other
agreements, instruments, endorsements, powers of attorney or notices,
as may be necessary or desirable, or as the Collateral Agent may
reasonably request, in order to perfect and preserve the security
interests granted or purported to be granted hereby; and
(ii) at the Collateral Agent's request, appear in and defend
any action or proceeding that may affect the Grantor's title to or the
Collateral Agent's security interest in all or any part of the Posted
Securities.
(b) In addition, to the extent permitted by applicable law,
the Grantor hereby authorizes the Collateral Agent to file one or more financing
or continuation statements, and amendments thereto, relative to all or any part
of the Collateral without the signature of the Grantor. The Grantor agrees that
a carbon, photographic or other reproduction of this Agreement or of a financing
statement signed by the Grantor shall be sufficient as a financing statement and
may be filed as a financing statement in any and all jurisdictions. The Grantor
shall furnish to the Collateral Agent from time to time statements further
identifying and describing the Posted Securities and such other reports in
connection with the Posted Securities as the Collateral Agent may reasonably
request, all in reasonable detail.
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(c) The Grantor hereby authorizes the Collateral Agent to file
a record or records (as defined in Revised Article 9), including, without
limitation, financing statements, in all jurisdictions and with all filing
offices as the Collateral Agent may determine, in its sole discretion, are
necessary or advisable to perfect the security interest granted to the
Collateral Agent herein. Such financing statements may describe the Posted
Securities in the same manner as described herein or may contain an indication
or description of collateral that describes such property in any other manner as
the Collateral Agent may determine, in its sole discretion, is necessary,
advisable or prudent to ensure the perfection of the security interest in the
Posted Securities granted to the Collateral Agent herein.
SECTION 6. REMEDIES.
If any SPA Event of Default shall have occurred and be
continuing, the Collateral Agent may exercise in respect of the Collateral, in
addition to all other rights, powers and remedies provided for herein and in the
Collateral Documents or otherwise available to it at law or in equity, all the
rights, powers and remedies of the Collateral Agent on default under the UCC
(whether or not the UCC applies to the affected Collateral); provided, however,
that upon such exercise of powers and remedies in respect of the Collateral, the
proceeds of such exercise shall be applied (net of costs related to such
exercise) against the Grantor's obligation under the Capital Contribution
Documents and the payments shall be made to the parties entitled thereto under
such Capital Contribution Document.
SECTION 7. CONTINUING SECURITY INTEREST.
This Agreement shall create a continuing security interest in
the Collateral and shall (a) remain in full force and effect until the earlier
of (x) the payment in full of all Secured Obligations and (y) the Minimum Amount
being equal to zero (the "SCHEDULED TERMINATION DATE"), (b) be binding upon the
Grantor, its successors and assigns, and (c) inure, together with the rights and
remedies of the Collateral Agent hereunder, to the benefit of the Collateral
Agent and its successors, transferees and assigns. Upon the Scheduled
Termination Date the security interest granted hereby shall terminate hereunder
and of record and all rights to the Collateral shall revert to the Grantor. Upon
any such termination the Collateral Agent shall, at the Grantor's expense,
execute and deliver to the Grantor such documents as such Grantor shall
reasonably request to evidence such termination.
SECTION 8. INDEMNITY AND EXPENSES.
(a) The Grantor agrees to indemnify, defend and save and hold
harmless the Collateral Agent and its respective officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and against, and shall
pay on demand, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of outside counsel)
that may be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or resulting from this Agreement
(including, without limitation, enforcement of this Agreement), except to the
extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct.
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(b) The Grantor will upon demand pay to the Collateral Agent
the amount of any and all reasonable expenses, including, without limitation,
the reasonable fees and expenses of its outside counsel that the Collateral
Agent may incur in connection with (i) the custody, or preservation, or the sale
of, collection from or other realization upon, any of the Collateral of the
Grantor, (ii) the exercise or enforcement of any of the rights of the Collateral
Agent hereunder or (iii) the failure by the Grantor to perform or observe any of
the provisions hereof.
(c) For the avoidance of doubt, the indemnities set forth in
this Section are in addition to any indemnities in favor of the Collateral Agent
as are set forth in the other Note Documents, including, without limitation,
Section 2.5 of the Collateral Agency and Intercreditor Agreement and Section 8.2
of the Common Terms Agreement.
SECTION 9. THE COLLATERAL AGENT.
SECTION 9.1 POWER OF ATTORNEY. The Grantor hereby irrevocably
appoints the Collateral Agent (such appointment being coupled with an interest)
as the Grantor's attorney-in-fact, with full authority in the place and stead of
such Grantor and in the name of the Grantor, the Collateral Agent or otherwise,
from time to time in the Collateral Agent's discretion to take any action and to
execute any instrument that the Collateral Agent may deem reasonably necessary
or advisable to accomplish the purposes of this Agreement, including, without
limitation, the following:
(a) upon the occurrence and during the continuance of any SPA
Event of Default, to ask for, demand, collect, sue for, recover, compound,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral;
(b) upon the occurrence and during the continuance of any SPA
Event of Default, to receive, endorse and collect any drafts or other
instruments, documents and chattel paper in connection with clause (a) above;
(c) upon the occurrence and during the continuance of any SPA
Event of Default, to file any claims or take any action or institute any
proceedings that the Collateral Agent may deem necessary or desirable for the
realization or collection of any of the Collateral or otherwise to enforce the
rights of the Collateral Agent with respect to any of the Collateral;
(d) to prepare, sign and file any UCC financing statements in
the name of the Grantor as debtor;
(e) to take or cause to be taken all actions necessary to
perform or comply or cause performance or compliance with the terms of this
Agreement, including, without limitation, access to pay or discharge taxes or
liens levied or placed upon or threatened against the Posted Securities, the
legality or validity thereof and the amounts necessary to discharge the same to
be determined by the Collateral Agent in its sole discretion, any such payments
made by the Collateral Agent to become obligations of the Grantor to the
Collateral Agent, due and payable immediately without demand; and
(f) generally to sell, transfer, pledge, make any agreement
with respect to or otherwise deal with any of the Posted Securities as fully and
completely as though the Collateral
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Agent were the absolute owner thereof for all purposes, and to do, at the
Collateral Agent's option and the Grantor's expense, at any time or from time to
time, all acts and things that the Collateral Agent deems reasonably necessary
to protect, preserve or realize upon the CCA Collateral and the Collateral
Agent's security interest therein in order to effect the intent of this
Agreement, all as fully and effectively as the Grantor might do.
SECTION 9.2 NO DUTY ON THE PART OF COLLATERAL AGENT OR SECURED
PARTIES. The powers conferred on the Collateral Agent hereunder are solely to
protect the interests of the Secured Parties in the Posted Securities and shall
not impose any duty upon the Collateral Agent or any Collateral Agent to
exercise any such powers. The Collateral Agent and the Secured Parties shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to the Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
Notwithstanding anything to the contrary in this Agreement, with respect to any
matter that requires the approval and consent of the Collateral Agent, the
Collateral Agent shall not be required to give such approval or consent without
having received the prior directions or instruction of the Secured Parties.
SECTION 9.3 COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT. For
the avoidance of doubt, the provisions of the Collateral Agency and
Intercreditor Agreement are hereby incorporated by reference, including, without
limitation, Article II and Section 4.6 thereof (except as expressly provided
hereunder).
SECTION 10. MISCELLANEOUS.
SECTION 10.1 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(OTHER THAN CHOICE OF LAW RULES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS
OF ANY OTHER JURISDICTION).
SECTION 10.2 SUBMISSION TO JURISDICTION, WAIVERS. The Grantor,
severally hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York sitting in the Borough of Manhattan, the courts
of the United States of America for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) represents that it has appointed and agrees that at all
times it will have an agent for service of process (the "Process Agent") located
in New York, New York;
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(d) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to CT
Corporation System, 111 8th Avenue, New York, New York 10011, or at such other
address as may be provided from time to time by notice to the parties hereto;
and
(e) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
SECTION 10.3 HEADINGS. The section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
SECTION 10.4 AMENDMENTS. Except as expressly provided by
Sections 3.2 and 3.5 hereto, none of the terms or provisions of this Agreement,
including, without limitation, the schedules, exhibits or any other attachments
hereto, (may be waived, amended, supplemented or otherwise modified except by a
written instrument executed by each of the parties hereto and, with respect to
the Collateral Agent, in accordance with the Collateral Agency and Intercreditor
Agreement.
SECTION 10.5 SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the Collateral Agent, the Grantor and
their respective successors and assigns. The Grantor shall not, without the
prior written consent of the Collateral Agent, acting upon the directions of the
Required Holders, assign any right, duty or obligation hereunder.
SECTION 10.6 COUNTERPARTS. This Agreement may be executed in
one or more counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document.
SECTION 10.7 NOTICES. Any notice required or permitted to be
given under this Agreement to be effective shall be in writing (including by
facsimile transmission) and shall be addressed as follows in the case of the
Grantor and the Collateral Agent or to such other address as may be hereafter
notified by the respective parties hereto:
The Grantor: Magnum Telecom Limited
c/o Rothschild Corporate
Fiduciary Services Limited
P.O. Box 472, St. Peter's House, Le Bordage,
St. Peter's Port, Guernsey C.I. GY1 6AX
Contact Person: Mr. Vince Aylward
Tel: +44 1481 707888
Fax: +44 1481 712686
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Copy to:
Contact Person: Mr. Ady Marom
Tel: +972-3-6967282
Fax: +972-3-6957969
Collateral Agent: The Chase Manhattan Bank
450 West 33 rd Street
New York, NY 10001
Attn: International & Project Finance Team
Ref: Global Village Telecom Ltda.
Fax: 212 946-8177/8178
SECTION 10.8 SEVERABILITY. In case any provision in or
obligation under this Agreement shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 10.9 CUMULATIVE REMEDIES; FAILURE OR DELAY. No failure
or delay on the part of the Collateral Agent in the exercise of any power, right
or privilege hereunder or under the Common Terms Agreement shall impair such
power, right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any
other power, right or privilege. All rights and remedies existing under this
Agreement and the Common Terms Agreement are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
SECTION 10.10 INDEPENDENCE OF COVENANTS. All covenants
hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or would otherwise be within the limitations of,
another covenant shall not avoid a violation of this Agreement if such action is
taken or condition exists.
SECTION 10.11 ENTIRE AGREEMENT. This Agreement and the Capital
Contribution Agreement embody the entire agreement and understanding between the
Grantor and the Collateral Agent and supersede all prior agreements and
understandings between such parties relating to the subject matter hereof and
thereof. Accordingly, the Capital Contribution Agreement may not be contradicted
by evidence of prior, contemporaneous or subsequent oral agreements of the
parties. There are no unwritten oral agreements between the parties.
SECTION 10.12 WAIVER OF TRIAL BY JURY. THE PARTIES HERETO
WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION UNDER THIS AGREEMENT OR ANY
ACTION ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS OF WHICH
PARTY INITIATES SUCH ACTION OR ACTIONS.
SECTION 10.13 JUDGMENT CURRENCY. (a) The Grantor's obligations
hereunder and under the other Capital Contribution Documents to make payments in
Dollars shall not be
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discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Dollars, except to
the extent that such tender or recovery results in the effective receipt by the
Collateral Agent or any Secured Party of the full amount of the Dollars
expressed to be payable to the Collateral Agent or such Secured Party under this
Agreement or the other Capital Contribution Documents. If, for the purpose of
obtaining or enforcing judgment against the Grantor in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than the Dollars (such other currency being hereinafter referred to as the
"JUDGMENT CURRENCY") an amount due in the Dollars, the conversion shall be made
at the Euro Equivalent, and, in the case of other currencies, the rate of
exchange (as quoted by the Collateral Agent or if the Collateral Agent does not
quote a rate of exchange on such currency, by a known dealer in such currency
designated by the Collateral Agent determined, in each case, as of the Business
Day immediately preceding the day on which the judgment is given (such Business
Day being hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, the Grantor covenants and agrees to pay, or cause to be paid,
such additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Dollars which could have been purchased with the
amount of Judgment Currency stipulated in the judgment or judicial award at the
rate of exchange prevailing on the Judgment Currency Conversion Date.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Grantor and the Collateral Agent have
caused this Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first written above.
MAGNUM TELECOM LIMITED, as Grantor
By:
------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as the Collateral Agent
By:
------------------------------------------
Name:
Title:
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