Portions of this Exhibit 10.15 have been omitted pursuant to a confidential
treatment request. The omitted material has been filed separately with the
Securities and Exchange Commission.
EXHIBIT 10.15
EXECUTION COUNTERPART
SIXTH AMENDMENT AND LIMITED TERM WAIVER AGREEMENT
SIXTH AMENDMENT AND LIMITED TERM WAIVER AGREEMENT (this "Agreement") dated as of
February 20, 2002 among SR TELECOM INC., a corporation duly organized and
validly existing under the laws of Canada ("SRT"), COMMUNICACION Y TELEFONIA
RURAL S.A., a sociedad anonima duly organized and validly existing under the
laws of Chile (the "Borrower") EXPORT DEVELOPMENT CANADA (formerly Export
Development Corporation), a corporation established by an Act of the Parliament
of Canada ("EDC"), and INTER-AMERICAN DEVELOPMENT BANK, an international
organization established by the Articles of Agreement among its member countries
("IDB", together with EDC, the "Senior Lenders").
WHEREAS, the Borrower and the Senior Lenders are parties to a Common Agreement
dated as of December 22, 1999 (as amended, modified and supplemented from time
to time, the "Common Agreement");
WHEREAS, the Borrower and EDC are parties to an Amended and Restated Loan
Agreement dated as of December 22, 1999 (as amended, modified and supplemented
from time to time, the "EDC Loan Agreement");
WHEREAS, the Borrower and IDB are parties to a Loan Agreement dated as of
December 22, 1999 (as amended, modified and supplemented from time to time, the
"IDB Loan Agreement");
WHEREAS, SRT, the Borrower and the Senior Lenders are parties to (i) an amended
and restated Project Funds Agreement dated as of December 22, 1999 (as amended,
modified and supplemented from time to time, the "Project Funds Agreement") and
(ii) an amended and restated Direct Agreement dated as of December 22, 1999 (as
amended, modified and supplemented from time to time, the "Direct Agreement");
WHEREAS, SRT and the Senior Lenders are parties to an amended and restated
Performance Undertaking Agreement dated as of December 22, 1999 (as amended,
modified and supplemented from time to time, the "Performance Undertaking
Agreement" and, together with the Common Agreement, the EDC Loan Agreement, the
IDB Loan Agreement, the Project Funds Agreement and the Direct Agreement, the
"Relevant Agreements"); and
WHEREAS, SRT and the Borrower have requested that the Senior Lenders temporarily
waive certain existing and anticipated Defaults and Events of Default and to
amend certain provisions of the Relevant Agreements, and the Senior Xxxxxxx are
willing to grant such waivers and amendments on the terms and conditions set
forth below.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Except as otherwise defined in this Agreement, terms
defined in the Common Agreement are used herein (including the recitals hereto)
as defined therein.
2
SECTION 2. SPECIFIED DEFAULTS. As used herein, "specified defaults" shall mean
the following continuing Defaults and Events of Default:
(a) the Defaults and the Events of Default which have resulted from the
Borrower's failure to:
(i) achieve the Completion of Network Construction by February 15,
2002;
(ii) maintain the ratio of its current assets (excluding prepaid
expenses) to its current liabilities (including current
maturities of Long-Term Debt) at no less than 1 to 1 when
calculated on December 31, 2001, as required by Section
8.10(a) of the Common Agreement;
(iii) maintain its EBITDA for the period of two consecutive fiscal
quarters ending on the date indicated under the "Quarter
Ending" column of Schedule IV to the Common Agreement at the
amount indicated in the "Covenant" column corresponding to
such date in Schedule IV to the Common Agreement, as required
by Section 8.10(c) of the Common Agreement for the Quarterly
Date of December 31, 2001;
(iv) maintain at least the respective Recurring Revenues on the
respective Quarterly Dates set out in Schedule V to the Common
Agreement, as required by Section 8.10(f) of the Common
Agreement for the Quarterly Date of December 31, 2001;
(v) maintain the Debt Service Coverage Ratio at more than 1.15 to
1 as required by Section 8.10(b) of the Common Agreement for
the Quarterly Date of December 31, 2001;
(vi) maintain the ratio of Total Debt to Equity at less than 1 to 1
as required by Section 8.10(e) of the Common Agreement for the
Quarterly Date of December 31, 2001;
(b) the Defaults and the Events of Default caused by SRT's failure to:
(i) provide funds to the Borrower at any time prior to Completion
of Network Construction in an amount equal to the Cost Overrun
less amounts previously transferred to the Borrower pursuant
to Section 2.01(a)(ii) of the Project Funds Agreement by
February 15, 2002;
(ii) provide funds to the Borrower from the period of September
30, 2001 to Financial Completion, in the event that the
Borrower has insufficient funds to pay any of its obligations
when due and payable in an aggregate amount equal to such
obligations which the Borrower is unable to pay, as required
by Section 2.01(a)(iii) of the Project Funds Agreement by
February 15, 2002;
(iii) provide the Senior Lenders with a Credit Enhancement
Instrument naming both Senior Lenders as beneficiaries thereof
following the receipt by SRT of a Ratings
3
Downgrade, as required by Section 2.04(a)(ii) of the Project
Funds Agreement by February 15, 2002;
(iv) cause the Completion of Network Construction (as such term is
defined in the Performance Undertaking Agreement), as required
by Section 2.01(a)(i) of the Performance Undertaking
Agreement by February 15, 2002;
(c) the Borrower's anticipated continuing non-compliance with, or breach
of, the covenants and requirements listed in clause (a) above for
additional relevant measuring periods occurring during the Waiver
Period (as defined in Section 3 below); and
(d) SRT's anticipated continuing non-compliance with, or breach of, the
covenants and requirements listed in clause (b) above for additional
relevant measuring periods during the Waiver Period (as defined in
Section 3 below).
SECTION 3. TEMPORARY WAIVER. The Senior Lenders agree, on the terms and subject
to the conditions hereof, temporarily to waive during the period (the "Waiver
Period") from and after the date the conditions specified in Section 5 have
been satisfied (the "Effective Date") until (but excluding) the Waiver
Termination Date (as defined in Section 6 below) the Specified Defaults.
Notwithstanding such temporary waiver, it is understood by the Borrower and SRT
that the Senior Lenders have not waived, other than the Specified Defaults, any
Default or Event of Default or any rights or remedies in respect thereof under
the Transaction Documents or otherwise. During the Waiver Period (and
thereafter), the Senior Lenders shall be permitted to exercise all of their
rights and remedies under the Transaction Documents (other than with respect to
the Specified Defaults), except as may be expressly limited or provided
otherwise in this Agreement.
SECTION 4. RELEVANT AGREEMENT AMENDMENTS. The Senior Lenders agree, subject to
the satisfaction of the conditions precedent specified in Section 5 below, to
amend certain provisions of the Relevant Agreements as follows:
(a) the Common Agreement shall be amended as follows:
(i) Section 1.01 of the Common Agreement shall be amended by
inserting the following definitions in alphabetical order
therein:
"CIBC Facility" shall mean the credit facility granted to SRT
pursuant to the terms of the facility letter agreement between
SRT and Canadian Imperial Bank of Commerce dated February 8,
2002, as amended from time to time.
"Sixth Amendment and Limited Term Waiver Agreement" shall
mean the Sixth Amendment and Limited Term Waiver Agreement
dated as of February 20, 2002 among the Borrower, SRT and the
Senior Lenders.
"SRT Budget" shall mean the three-year forecast for SRT
without regard to Unrestricted Subsidiaries (as such term is
defined in the Trust Indenture) but including Restricted
Subsidiaries (as such term is defined in the Trust Indenture)
4
approved by SRT's board of directors and provided to the
Senior Lenders on December 21, 2001.
(ii) the definition of "Deferred Amount" in Section 1.01 of the
Common Agreement shall be amended by deleting the definition
in its entirety and replacing it with the following:
""Deferred Amount" shall mean, on any date of determination,
the amount equal to (a) the difference between the sum of the
amounts of principal which would have been due and payable
under the Senior Loan Agreements on the Principal Payment
Dates occurring on May 15, 2002 and November 15, 2002, in the
event that the Senior Loan Agreements had not been amended
pursuant to the Sixth Amendment and Limited Term Waiver
Agreement and the sum of the principal amounts payable on such
dates under the Senior Loan Agreements as amended by the Sixth
Amendment and Limited Term Waiver Agreement; less (b) the
amounts of principal paid by the Borrower to the Senior
Lenders by such date of determination whether by transfer from
the Accrual Accounts in accordance with the provisions of
Sections 4.04(b) and 4.05(b) or otherwise."
(iii) Section 4.03(b), "second" of the Common Agreement shall be
amended by deleting such clause in its entirety and replacing
it with the following:
"second, on the first Business Day of each calendar
month, the balance of the Operating Account less $400,000 pro
rata, to the EDC Accrual Account and the IDB Accrual
Account."
(iv) Section 4.03(b), "third" of the Common Agreement shall be
deleted in its entirety;
(v) Section 4.04(a) of the Common Agreement shall be amended by
deleting the phrase "and clause third" in the last line
thereof;
(vi) Section 4.04(b) of the Common Agreement shall be amended by
deleting the proviso at the end thereof and replacing it with
the following proviso:
"provided that until the Deferred Amount shall have been paid
in full, if the balance of the EDC Accrual Account is at least
equal to aggregate cumulative total of 1/6 of the Debt Service
owing to EDC for each of the months since the previous Payment
Date, the Borrower may direct that all or part of any funds in
excess of such amount be transferred to EDC to be applied
towards the Deferred Amount."
(vii) Section 4.05(a) of the Common Agreement shall be amended by
deleting the word "third" in the last line thereof and
replacing it with the word "second";
(viii) Section 4.05(b) of the Common Agreement shall be amended by
inserting the following proviso at the end thereof:
5
"provided that until the Deferred Amount shall have been paid
in full, if the balance of the IDB Accrual Account is at least
equal to the aggregate cumulative total of 1/6 of the Debt
Service owing to IDB for each of the months since the previous
Payment Date, the Borrower may direct that all or part of any
funds in excess of such amount be transferred to IDB to be
applied towards the Deferred Amount."
(ix) Section 8.0l(g) of the Common Agreement shall be deleted in
its entirety and replaced with the following:
"(g) no later than ten Business Days after the end of each
calendar month, the Borrower shall deliver to the Senior
Lenders and PWC, in form and substance satisfactory to the
Senior Lenders a cash flow schedule, which shall be as current
as possible and shall include historical year-to-date data and
three-month forecasts for the Borrower shown on a weekly
basis";
(x) Section 8.10(g) of the Common Agreement shall be amended by
deleting the words "$144,000 in any calendar year" and
replacing them with "$450,000 in any fiscal quarter";
(xi) Section 8.10(i) of the Common Agreement shall be deleted;
(xii) Section 8.22 of the Common Agreement shall be deleted and
replaced with the words "intentionally omitted";
(b) the EDC Loan Agreement shall be amended as follows:
(i) the definition of "Interest Period" in the EDC Loan Agreement
shall be amended by deleting clause (c) thereof and replacing
it with the following:
"(c) for those amounts of principal and interest
deferred in connection with the Principal Payment Dates
occurring on May 15, 2002 and November 15, 2002 pursuant to
Section 3.01, the period commencing on May 15, 2002 or
November 15, 2002, as the case may be, and ending on and
including the date any such deferred amount is paid in full;";
(ii) Section 3.01 of the EDC Loan Agreement shall be amended by
deleting the second-last sentence thereof and replacing it
with the following:
"Notwithstanding the foregoing, with respect to
the Principal Payment Dates occurring on May 15, 2002 and
November 15, 2002 the Lender agrees that such payments shall
be deferred and that the Borrower shall be permitted to pay
the amount of $954,546, together with interest thereon, less
any amounts that have been transferred from the EDC Accrual
Account in accordance with the proviso in Section 4.04(b) of
the Common Agreement as of such Principal
6
Payment Date, on each such Principal Payment Date, and the
Borrower shall pay the Lender the amount of $2,840,908,
together with interest thereon, less any amounts that have
been transferred from the EDC Accrual Account in accordance
with the proviso in Section 4.04(b) of the Common Agreement as
of such Principal Payment Date, on the Principal Payment Date
occurring on May 15, 2003.";
(iii) Section 3.02 of the EDC Loan Agreement shall be amended by
deleting the last paragraph thereof;
(c) the IDB Loan Agreement shall be amended as follows:
(i) the definition of "Interest Period" in the IDB Loan Agreement
shall be amended by (i) deleting the word "or" at the end of
clause (a) thereof; (ii) inserting the word "or" at the end of
clause (b) thereof; and (iii) inserting the following clause
after clause (b):
"(c) for those amounts of principal and interest
deferred in connection with the Principal Payment Dates
occurring on May 15, 2002 and November 15, 2002 pursuant to
Section 3.01, the period commencing on May 15, 2002 or
November 15, 2002, as the case may be, and ending on and
including the date any such deferred amount is paid in full;";
(ii) Section 3.01 of the IDB Loan Agreement shall be amended by
inserting the following prior to the last sentence thereof:
"Notwithstanding the foregoing, with respect to the
Principal Payment Dates occurring on May 15, 2002 and November
15, 2002 the Lender agrees that such payments shall be
deferred and that the Borrower shall be permitted to pay the
amount of $795,454, together with interest thereon, less any
amounts that have been transferred from the IDB Accrual
Account in accordance with the proviso in Section 4.05(b) of
the Common Agreement as of such Principal Payment Date, and
the Borrower shall pay the Lender the amount of $2,409,092,
together with interest thereon, less any amounts that have
been transferred from the IDB Accrual Account in accordance
with the proviso in Section 4.05(b) of the Common Agreement as
of such Principal Payment Date, on the Principal Payment Date
occurring on May 15, 2003.";
(d) Section 5.1(a) of the Direct Agreement shall be amended by deleting
subsection (v) thereof in its entirety and replacing it with the
following:
"(v) beginning February 15, 2002, in form and substance
satisfactory to the Senior Lenders:
(A) a copy of all material information when received
referring to the marketing and proposed disposition of the
Borrower, including but not limited to
7
mandate letters from financial institutions, disposition
strategy, timing, potential buyers and terms of any potential
purchase and sale; and
(B) no later than 10 Business Days after the end
of each calendar month, monthly income statements and balance
sheets of SRT without regard to Unrestricted Subsidiaries but
including Restricted Subsidiaries;
(C) no later than 10 Business Days after the end
of each calendar month, a monthly cash flow schedule, which
shall be as current as possible and include historical
year-to-date data and a three-month forecast for SRT, without
regard to Unrestricted Subsidiaries but including Restricted
Subsidiaries;
(D) no later than one week before each Quarterly
Date, an updated SRT Budget incorporating revised forecasts
for the prospective period; and
(vi) by no later than February 22, 2002, a board
presentation and other relevant supporting documentation related to
the acquisition of GTH Chile S.A., as presented to SRT's board of
directors; and
(vii) by no later than March 31, 2002 a revised five-year
business plan for the Borrower that incorporates the acquisition by the
Borrower of shares of GTH Chile S.A.."
SECTION 5. EFFECTIVENESS. This Agreement shall become effective on the date on
which each of the following items has been satisfied (or waived by the Senior
Lenders) in form and substance satisfactory to the Senior Lenders:
(a) each Senior Lender shall have received an executed counterpart of this
Agreement from each other Senior Lender, the Borrower and SRT;
(b) the Borrower shall have paid to EDC all outstanding amounts of
principal and accrued interest due and owing as of the date hereof;
(c) SRT shall have provided evidence satisfactory to the Senior Lenders of
the payment in full all outstanding and invoiced fees and expenses of
the Senior Lenders (including, without limitation, fees and expenses
which have been invoiced by consultants and attorneys retained to
assist the Senior Lenders);
(d) SRT shall have paid a forbearance fee in the amount of [ ]* to each
of the Senior Lenders;
(e) SRT shall have provided the Senior Lenders with written confirmation,
in form and substance satisfactory to the Senior Lenders, from Canadian
Imperial Bank of Commerce that Canadian Imperial Bank of Commerce has
agreed to waive the consent requirement set out in Section 17 of the
CIBC Facility during the Waiver Period; and
* Material omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the Securities and Exchange
Commission.
8
(f) the Senior Lenders shall have received the following legal opinions,
each in form and substance satisfactory to the Senior Lenders: (a) the
opinion of Fasken Xxxxxxxxx XxXxxxxx LLP, Canadian counsel to SRT, and
(b) the opinion of Pillsbury Winthrop, New York counsel to SRT and the
Borrower; and
(g) each Senior Leader shall have received a one-year combined business
plan covering both the Borrower and GTH Chile S.A.
SECTION 6. TERMINATION. The temporary waiver provided in Section 3 shall
terminate and be of no further force or effect at 10:00 a.m. (New York City
time) on the date (the "WAIVER TERMINATION DATE") which is the earliest of:
(a) January 31, 2003;
(b) the date of the occurrence of any of the events listed in Sections
9(h), 9(i), and 9(j) of the Common Agreement with respect to SRT;
(c) the date of the occurrence of any of the events listed in Sections
9(h), 9(i), and 9(j) of the Common Agreement with respect to the
Borrower;
(d) the date of the occurrence of any one or more of the following events:
(i) a breach by the Borrower or SRT of any of the representations,
warranties, covenants, or other provisions contained in
Sections 9, 10(a) or 10(b) of this Agreement;
(ii) a breach by the Borrower or SRT of any of the representations,
warranties, covenants, or other provisions contained in this
Agreement (excluding the representations, warranties,
covenants, or other provisions referred to in Section 6(d)(i)
above) which breach shall continue for five (5) Business Days
after the Borrower or SRT has knowledge thereof; or
(iii) any Event of Default or Default (without regard to the giving
of any notice or the lapse of time), other than a Specified
Default, shall occur and be continuing;
(e) the date of the occurrence of any of the events listed in Section 5.1
of the Trust Indenture;
(f) the date of the breach of any of the covenants listed in Section 13 or
Section 14 (or any ether section of the CIBC Facility as it may be
amended from time to time that imposes covenants upon SRT) of the CIBC
Facility;
(g) the date that the Borrower or SRT takes any action to challenge
(including, without limitation, to assert in writing any challenge to)
the validity, perfection or enforceability of this Agreement, any
Transaction Document or any provision of any such agreement or
document, or the security interests and Liens provided thereunder;
9
(h) the date that any secured creditor of the Borrower or SRT initiates
steps to, or notifies the Borrower or SRT of its intent to, foreclose
on any assets of the Borrower or SRT, with respect to which such
creditor holds a Lien.
From and after the Waiver Termination Date, the temporary waivers set forth
herein shall terminate and be of no further force or effect, and the Senior
Lenders shall be entitled to immediately exercise and enforce any and all rights
and remedies available to the Senior Lenders as a consequence of any Specified
Defaults that have occurred prior to, during or after the Waiver Period. Except
as otherwise provided herein, all other provisions of this Agreement shall
survive the Waiver Termination Date and shall continue to be binding upon the
parties hereto.
SECTION 7. AMENDMENTS; EXTENSIONS. Except as expressly provided herein, the
terms of this Agreement may be modified, amended or waived only by an instrument
in writing executed by the Borrower, SRT and the Senior Lenders. It is
understood and agreed that the Senior Lenders are not and shall not be under any
obligation, express or implied, to consent to any modification or amendment
hereof or to any extension of the Waiver Period.
SECTION 8. CONTINUING EFFECT. Except as expressly provided herein, the Relevant
Agreements and all other Transaction Documents shall remain unchanged and in
full force and effect, and all rights, powers and remedies of the Senior Lenders
are hereby expressly reserved. Without in any way limiting the generality of the
foregoing, the Borrower and SRT shall be liable in accordance with the
Transaction Documents for any and all sums and charges due pursuant thereto and
shall timely pay, during the Waiver Period, all obligations coming due and
payable under the Transaction Documents (including to the extent modified
herein). Except to the extent expressly waived herein, SRT and the Borrower
remain obligated by the representations, warranties, covenants, and other
provisions set forth in the Transaction Documents.
SECTION 9. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and SRT
represents and warrants to the Senior Lenders that:
(a) each of the Borrower and SRT has the full authority and legal right and
power to execute and deliver this Agreement and to perform the terms
hereof and the transactions contemplated hereby;
(b) each of the Borrower and SRT has taken all necessary corporate or other
action on the part of such party to be required to be taken in
connection with the execution, delivery and performance of this
Agreement and the transactions contemplated hereby;
(c) the execution, delivery and performance by such party does not
constitute a violation or breach of such party's articles of
incorporation, by-laws, or material agreements or any law by which such
party is bound;
(d) the Borrower has no Indebtedness other than Permitted Indebtedness;
(e) SRT has provided to the Senior Lenders all documents and agreements
relating to (i) Indebtedness of SRT in excess of $5,000,000 and (ii)
any pledge of, or security interest in, any asset of the Borrower and
SRT; and listed on Schedule 1 hereto are all payments
10
of principal of Indebtedness of SRT in excess of $5,000,000 scheduled
to become due at any time from February 15, 2002 to January 31, 2003.
SECTION 10. COVENANTS.
(a) SRT covenants and agrees that, until the indefeasible payment in full
of the Obligations:
(i) it shall pay a deferral fee pro rata to each of the Senior
Lenders on the daily average outstanding Deferred Amount for
the previous quarter at a rate per annum equal to [ ]*. The
accrued deferral fee shall be payable on each of November 15,
February 15, May 15 and August 15 in each year commencing
August 15, 2002 and ending on the next such date after date
on which the Deferred Amount is paid in full;
(ii) it shall pay from time to time, but no later than 10 days
after request and submission of detailed invoices therefor
(provided that such invoices shall not be required to reveal
privileged information), all reasonable fees, expenses and
disbursements of the Senior Lenders (including, but not
limited to, the fees, expenses and costs of legal counsel and
financial advisors to the Senior Lenders);
(iii) it shall provide the Senior Lenders with the proposed terms
of any amendment or renewal of the CIBC Facility or the Trust
Indenture within five (5) Business Days of the receipt or
proposal by SRT thereof;
(iv) during the Waiver Period, it shall not (A) incur additional
indebtedness other than indebtedness permitted by the terms
of Section 4.2.1 of the Trust Indenture and Section 14(e) of
the CIBC Facility (or any other section of the CIBC Facility
as it may be amended from time to time that permits the
incurrence by SRT of additional indebtedness), (B) cause or
permit any change to the terms of Section 4.2.1 of the Trust
Indenture or Section 14(e) of the CIBC Facility (or any other
section of the CIBC Facility as it may be amended from time
to time that permits the incurrence by SRT of additional
indebtedness), or (C) cause or permit any change to the Trust
Indenture or the CIBC Facility which would have the effect of
(y) shortening the maturity thereof, or (z) otherwise
adversely affecting the position of the Senior Lenders;
(v) during the Waiver Period, it will not make any voluntary
prepayment including, without limitation, a redemption or
partial redemption of debentures or the purchase of
debentures for cancellation in accordance with Article 3 of
the Trust Indenture with respect to any Indebtedness.
(b) the Borrower and SRT shall cause the delivery of the opinion of Xxxxx &
XxXxxxxx, Chilean counsel to SRT and the Borrower, in form and
substance satisfactory to the Senior Lenders, by no later than five (5)
Business Days after the Effective Date;
(c) the Borrower or SRT, as the case may be, shall give prompt (but in no
event later than two (2) Business Days after the occurrence thereof)
notice by facsimile to the Senior Lenders of any event or condition
described in Section 6 (other than Section 6(a));
* Material omitted pursuant to a confidential treatment request. The
omitted material has been filed separately with the Securities and Exchange
Commission.
11
(d) the Borrower or SRT, as the case may be, shall provide the Senior
Lenders with any additional information that either of the Senior
Lenders shall reasonably request; and
(e) the Borrower covenants and agrees that it shall (i) take all actions
under applicable laws and regulations before the Central Bank of Chile
in order to obtain all necessary approvals and registrations
(including, but not limited to, amendments to the existing
registrations of the Senior Loan Agreements and the Common Agreement)
in connection with the amendments set out in Section 4 and (ii) cause
the amendment the Project Account Agreement to the extent necessary to
reflect the amendments to Section 4 of the Common Agreement set out in
this Agreement as soon as possible after the date hereof.
SECTION 11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
SECTION 12. BENEFIT OF AGREEMENT. This Agreement is solely for the benefit of
the signatories hereto (and their respective successors and assigns), and no
other Person (including without limitation any other creditor of or claimant
against SRT or the Borrower or any shareholder of SRT or the Borrower) shall
have any rights under, or because of the existence of, this Agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER
TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 15. NO COMMITMENT OR WAIVER. Neither this Agreement nor any action or
inaction on the part of the Senior Lenders shall be construed to constitute or
represent (i) a commitment by the Senior Lenders, either in their capacities
under the Transaction Documents or in any other capacity, to restructure any
Indebtedness of the Borrower, or (ii) an intention by the Senior Lenders, except
as expressly provided in Section 2 above, to waive, modify or forbear from
exercising any of their rights, powers, privileges or remedies under the
Transaction Documents or under any other document or agreement, at law, in
equity or otherwise (including with respect to any Default or Event of Default
(other than with respect to the Specified Defaults to the extent provided
herein)), and SRT and the Borrower each acknowledge, agree and confirm, except
as expressly provided in Section 2 above, that no such commitment, waiver,
modification or forbearance has been offered, granted, extended or agreed to by
the Senior Lenders, either in their capacities under the Transaction Documents
or in any other capacity (including with respect to any Default or Event of
Default (other than with respect to the Specified Defaults to the extent
provided herein)). Nothing set forth in this Agreement shall be construed so as
to require the Senior Lenders, either in their capacities under the Transaction
Documents or in any other capacity, to agree to the terms of any modification
proposed by the Borrower or SRT to the
12
Transaction Documents or any other document or agreement to which either of the
Senior Lenders is a party.
SECTION 16. REMEDIES. No failure on the part of the Senior Lenders to exercise,
and no course of dealing with respect to, and no delay in exercising, any right,
power or remedy hereunder or under the Transaction Documents shall operate as a
waiver thereof; nor shall any single or partial exercise by the Senior Lenders
of any right, power or remedy hereunder, under Transaction Documents preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy.
SECTION 17. VOLUNTARY AGREEMENT. Each of the Borrower and SRT represents and
warrants that it is represented by legal counsel of its choice, is fully aware
of the terms contained in this Agreement and has voluntarily and without
coercion or duress of any kind entered into this Agreement, and the documents
and agreements executed and to be executed in connection with this Agreement. No
provision hereof shall be interpreted or construed for or against any party
because such party prepared or requested, or may have prepared or requested,
such provision, any other provision or this Agreement as a whole.
SECTION 18. TRANSACTION DOCUMENTS IN FULL FORCE. Each of SRT and the Borrower
covenants and agrees that the Transaction Documents and the provisions thereof
are and remain legal, valid and binding obligations of each of SRT and the
Borrower enforceable in accordance with their terms, and remain in full force
and effect except as amended or modified hereby, and each of SRT and the
Borrower hereby reaffirm, reconfirm and restate, all such obligations, as so
modified, to the Senior Lenders. Neither SRT nor the Borrower has, and, in any
event, hereby waives and releases, any claim, counterclaim, demand (other than
notices required under the Transaction Documents), action, defense (other than
that SRT or the Borrower in fact has performed or complied with such obligation)
or offset against any of its Indebtedness, Obligations and other obligations
(and the enforcement thereof) under the Transaction Documents against the Senior
Lenders or their respective employees, agents and representatives, by reason of
any matter, cause or thing whatsoever occurring on or before the date hereof
which relates to or arises out of the Transaction Documents or any obligations
or responsibilities of the Senior Lenders under or in respect of the
Transaction Documents. In addition, each of SRT and the Borrower agrees not to
commence, join in, assist, cooperate, prosecute or participate in (other than as
a defendant) any suit or other proceeding in a position that is materially
adverse to the Senior Lenders concerning matters within the scope of the waiver
contained above. Each of SRT and the Borrower hereby expressly acknowledges and
agrees that nothing in this Agreement or in any document or instrument executed
in connection with or pursuant to this Agreement shall constitute a satisfaction
as to all or any portion of the Obligations.
SECTION 19. CERTAIN ACKNOWLEDGMENTS. Each of SRT and the Borrower hereby:
(a) expressly acknowledges and agrees that as of the date hereof, the
aggregate outstanding principal amount of the EDC Loans (after the
payment required by Section 5(b) has been made) is $22,000,000;
(b) expressly acknowledges and agrees that as of the date hereof, the
aggregate outstanding principal amount of the IDB Loans is $22,500,000;
13
(c) expressly acknowledges and agrees that each of the Specified Defaults
has occurred and continues to exist (or, in the case of the Specified
Defaults listed in Sections 2(c) and 2(d), will occur and continue to
exist during the Waiver Period) as of the date of this Agreement and
represents and warrants that, except for the Specified Defaults, as of
such date no other Event of Default has occurred and continues to
exist;
(d) expressly acknowledges and agrees that funds extended by SRT to the
Borrower during the period commencing on June 30, 2001 through and
including the Waiver Termination Date shall not constitute funds to be
applied to the capped amount of $12 million referred to in Section 2.01
(a)(iii) of the Project Funds Agreement;
(e) expressly acknowledges and agrees that it will not take any action with
respect to any sale or disposition of the Borrower or its assets
without the prior written consent of the Senior Lenders, and that such
consent will be subject to, without limitation, the compliance by the
Borrower and SRT with the terms of the Transfer Restrictions Agreement
and the Common Agreement with respect to a sale or disposition of the
Borrower or its assets; and
(d) ratifies and reaffirms the validity, perfection and enforceability of
all of the Liens and security interests heretofore granted pursuant to
the Transaction Documents to the Senior Lenders as collateral security
for the Obligations and acknowledges that all of such Liens and
security interests, and all collateral heretofore pledged as security
for the Obligations, continues to be and remains collateral for the
Obligations from and after the date hereof.
SECTION 20. MOST FAVORED CREDITOR CLAUSE. Each of SRT and the Borrower hereby
agrees that it shall not enter into any standstill, forbearance or restructuring
agreement (of any type or nature) with any creditor or creditors without the
prior written consent of the Senior Lenders. If during the Waiver Period, SRT or
the Borrower enters into any such other standstill, forbearance or restructuring
agreement that contains any terms, provisions or treatment that are more
favorable to such creditor or creditors, in the opinion of the Senior Lenders,
than the terms, provisions, or treatment of the Senior Lenders set forth herein,
then the Senior Lenders shall be entitled to be accorded the benefits of any
such terms, provisions or treatment, as reasonably determined by the Senior
Lenders, and SRT or the Borrower, as the case may be, shall be required
immediately to take any and all actions necessary to accord the Senior Lenders
the benefits of such terms, provisions or treatment. Notwithstanding the
foregoing, this clause shall not apply to extend the stated term of this
Agreement. Neither SRT's nor the Borrower's obligations hereunder shall be
exhausted by any one exercise of this clause, but shall survive for the term of
this Agreement.
SECTION 21. COMMON AGREEMENT EVENT OF DEFAULT. Any breach by SRT or the Borrower
of any of the terms of this Agreement will constitute an Event of Default under
the Common Agreement.
SECTION 22. FURTHER ASSURANCES. Each of the Borrower and SRT shall execute all
additional documents and do all acts not specifically referred to herein which
are reasonably necessary to effectuate the intent of this Agreement.
IN WITNESS WHEREOF, the parties hereto, by their officers duly
authorized, have caused this Agreement to be duly executed and delivered as of
the date first above written.
SR TELECOM INC.
By: /s/ X.X. Xxxxx
-------------------------------
Name: X.X. Xxxxx
-----------------------------
Title: VP Finance & CFO
----------------------------
By: /s/ Pierre St-Arnaud
-------------------------------
Name: Pierre St-Arnaud
-----------------------------
Title: President & CEO
----------------------------
COMUNICACION Y TELEFONIA RURAL
S.A.
By: /s/ X.X. Xxxxx
-------------------------------
Name: X.X. Xxxxx
-----------------------------
Title: VP Finance & CFO
----------------------------
INTER-AMERICAN DEVELOPMENT BANK
By: /s/ XXXXXXX XXXXXX
-------------------------------
Name: XXXXXXX XXXXXX
-----------------------------
Title: PRI/MGR
----------------------------
By:
------------------------------
Name:
-----------------------------
Title:
----------------------------
EXPORT DEVELOPMENT CORPORATION
By: /s/ XXXXX XXXXX
-------------------------------
Name: XXXXX XXXXX
-----------------------------
Title: Financial Services Manager
----------------------------
By: /s/ X.X. XXXX
-------------------------------
Name: X.X. XXXX
-----------------------------
Title: Vice President
----------------------------
