SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
TELECOM ARGENTINA S.A. |
(Name of Issuer) |
CLASS B ORDINARY SHARES |
(Title of Class of Securities) |
879273209 |
(CUSIP Number) |
Erika Mouynes Fintech Advisory Inc. 375 Park Avenue New York, NY 10152 (212) 593-4500 |
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) |
With a copy to: Richard J. Cooper, Esq. Adam Brenneman, Esq. Cleary, Gottlieb, Steen & Hamilton LLP One Liberty Plaza New York, New York 10006 (212) 225-2000 |
March 8, 2016 |
(Date of Event which Requires Filing of this Statement) |
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (the "Exchange Act") or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes).
CUSIP No. 879273209 | |||||
1. |
Names of Reporting Persons David Martínez | ||||
2. |
Check the Appropriate Box if a Member of a Group (see instructions)
|
(a) (b) |
☐ ☒ | ||
3. | SEC USE ONLY | ||||
4. |
Source of Funds (see instructions) AF | ||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) | ☐ | |||
6. |
Citizenship or Place of Organization United Kingdom | ||||
Number of Class B Shares Beneficially Owned by Each Reporting Person with
|
7. |
Sole Voting Power 18,086,059(1) | |||
8. |
Shared Voting Power 36,832,408(2) | ||||
9. |
Sole Dispositive Power 18,086,059 | ||||
10. |
Shared Dispositive Power 36,832,408 | ||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person 54,918,467 | ||||
12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares (see instructions) | ☐ | |||
13. |
Percent of Class Represented by Amount in Row (11) 11.39% | ||||
14. |
Type of Reporting Person (see instructions) IN | ||||
1 David Martínez exercises his rights over the Class B Shares (as defined in Item 1 below) set forth in this line item indirectly through Fintech Advisory Inc. and Fintech Telecom, LLC.
2 David Martinez, together with Fintech Advisory Inc. and Fintech Telecom, LLC, exercises his rights over the Class B Shares (as defined in Item 1 below) set forth in this line item indirectly through Sofora Telecomunicaciones S.A. and other subsidiaries.
Page 2 of 22 |
CUSIP No. 879273209 | |||||
1. |
Names of Reporting Persons. Fintech Advisory Inc. | ||||
2. |
Check the Appropriate Box if a Member of a Group (see instructions)
|
(a) (b) |
☐ ☒ | ||
3. | SEC USE ONLY | ||||
4. |
Source of Funds (see instructions) AF | ||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) | ☐ | |||
6. |
Citizenship or Place of Organization Delaware | ||||
Number of Class B Shares Beneficially Owned by Each Reporting Person with
|
7. |
Sole Voting Power 18,086,059(3) | |||
8. |
Shared Voting Power 36,832,408(4) | ||||
9. |
Sole Dispositive Power 18,086,059 | ||||
10. |
Shared Dispositive Power 36,832,408 | ||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person 54,918,467 | ||||
12. | Check if the Aggregate Amount in Row (11) Excludes Certain Class B Shares (see instructions) | ☐ | |||
13. |
Percent of Class Represented by Amount in Row (11) 11.39% | ||||
14. |
Type of Reporting Person (see instructions) HC, CO, IA | ||||
3 Fintech Advisory Inc. exercises its rights over the Class B Shares (as defined in Item 1 below) set forth in this line item indirectly through Fintech Telecom, LLC.
4 Fintech Advisory Inc., together with David Martinez and Fintech Telecom, LLC, exercises its rights over the Class B Shares (as defined in Item 1 below) set forth in this line item indirectly through Sofora Telecomunicaciones S.A. and other subsidiaries.
Page 3 of 22 |
CUSIP No. 879273209 | |||||
1. |
Names of Reporting Persons. Fintech Telecom, LLC | ||||
2. |
Check the Appropriate Box if a Member of a Group (see instructions)
|
(a) (b) |
☐ ☒ | ||
3. | SEC USE ONLY | ||||
4. |
Source of Funds (see instructions) AF | ||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) | ☐ | |||
6. |
Citizenship or Place of Organization Delaware | ||||
Number of Class B Shares Beneficially Owned by Each Reporting Person with
|
7. |
Sole Voting Power 18,086,059 | |||
8. |
Shared Voting Power 36,832,408(5) | ||||
9. |
Sole Dispositive Power 18,086,059 | ||||
10. |
Shared Dispositive Power 36,832,408 | ||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person 54,918,467 | ||||
12. | Check if the Aggregate Amount in Row (11) Excludes Certain Class B Shares (see instructions) | ☐ | |||
13. |
Percent of Class Represented by Amount in Row (11) 11.39% | ||||
14. |
Type of Reporting Person (see instructions) HC | ||||
5 Fintech Telecom LLC, together with David Martinez and Fintech Advisory Inc., exercises its rights over the Class B Shares (as defined in Item 1 below) set forth in this line item indirectly through Sofora Telecomunicaciones S.A. and other subsidiaries.
Page 4 of 22 |
CUSIP No. 879273209 | |||||
1. |
Names of Reporting Persons Sofora Telecomunicaciones S.A. | ||||
2. |
Check the Appropriate Box if a Member of a Group (see instructions)
|
(a) (b) |
☐ ☒ | ||
3. | SEC USE ONLY | ||||
4. |
Source of Funds (see instructions) N/A | ||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) | ☐ | |||
6. |
Citizenship or Place of Organization Argentina | ||||
Number of Class B Shares Beneficially Owned by Each Reporting Person with
|
7. |
Sole Voting Power
| |||
8. |
Shared Voting Power 36,832,408(6) | ||||
9. |
Sole Dispositive Power
| ||||
10. |
Shared Dispositive Power 36,832,408 | ||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person 36,832,408 | ||||
12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares (see instructions) | ☐ | |||
13. |
Percent of Class Represented by Amount in Row (11) 7.64% | ||||
14. |
Type of Reporting Person (see instructions) HC, CO | ||||
6 Sofora Telecomunicaciones S.A. exercises its rights over the Shares (as defined in Item 1. below) through its participation in Nortel Inversora S.A.
Page 5 of 22 |
CUSIP No. 879273209 | |||||
1. |
Names of Reporting Persons Nortel Inversora S.A. | ||||
2. |
Check the Appropriate Box if a Member of a Group (see instructions)
|
(a) (b) |
☐ ☒ | ||
3. | SEC USE ONLY | ||||
4. |
Source of Funds (see instructions) N/A | ||||
5. | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) | ☐ | |||
6. |
Citizenship or Place of Organization | ||||
Number of Class B Shares Beneficially Owned by Each Reporting Person with
|
7. |
Sole Voting Power 36,832,408 | |||
8. |
Shared Voting Power
| ||||
9. |
Sole Dispositive Power 36,832,408 | ||||
10. |
Shared Dispositive Power
| ||||
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person 36,832,408 | ||||
12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares (see instructions) | ☐ | |||
13. |
Percent of Class Represented by Amount in Row (11) 7.64% | ||||
14. |
Type of Reporting Person (see instructions) HC, CO | ||||
Page 6 of 22 |
Item 1. Security and Issuer
This statement on Schedule 13D (the “Schedule 13D”) relates to the Class B shares, Ps. 1.00 par value per share (the “Class B Shares”), of Telecom Argentina S.A., an Argentine corporation (the “Issuer”), a portion of which is represented by American Depositary Class B Shares which are traded on the New York Stock Exchange (the “NYSE”). The principal executive offices of the Issuer are located at Alicia Moreau de Justo 50, 10th floor, 1107 Buenos Aires, Argentina.
The information set forth in response to each separate Item below shall be deemed to be a response to all Items where such information is relevant.
Item 2. Identity and Background
The names of the persons filing this statement are David Martínez, a citizen of the United Kingdom, Fintech Advisory Inc., a Delaware corporation (“FAI”), Fintech Telecom, LLC, a Delaware limited liability company (“FTL”), Sofora Telecomunicaciones S.A., an Argentinean corporation (“Sofora”) and Nortel Inversora S.A., an Argentinean corporation (“Nortel” and, together with David Martinez, FTL, FAI and Sofora, the “Reporting Persons”). The Reporting Persons have entered into a Joint Filing Agreement, dated as of March 18, 2016 a copy of which is attached hereto as Exhibit 15.
The principal business address of David Martínez is 26 St. James's Street, London SW1A 1HA, England. The principal business address of each of FAI and FTL is 375 Park Avenue, 38th Floor, New York, NY 10152. The address of the principal office of Sofora is Alicia Moreau de Justo 50, 11th Floor, 1107 Buenos Aires, Argentina. The address of the principal office of Nortel is Alicia Moreau de Justo 50, 11th Floor, 1107 Buenos Aires, Argentina.
David Martínez is chairman of the board of directors and sole shareholder of FAI. FAI is an investor and investment manager in equity and debt securities of sovereign and private entities primarily in emerging markets. FTL is a wholly-owned direct subsidiary of FAI and its primary purpose is to hold the securities of the Issuer. Sofora and Nortel are purely holding companies. The ownership structure of Sofora and Nortel is described in Item 5.
The name, citizenship, present principal occupation or employment and business address of each director and executive officer of the Reporting Persons are set forth in Schedule A hereto.
During the last five years, none of the Reporting Persons, nor any manager or executive officer of the Reporting Persons, to the best of their knowledge, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject, to federal or state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
The Reporting Persons are the beneficial owners of, in the aggregate, 54,918,467 or 11.39% of the Class B Shares. The acquisition of the Class B Shares was funded through a financing under a master financing agreement from Fintech Investments Ltd. (“FIL”) dated as of October 29, 2014 and attached as Exhibit 14 (the “MFA”). Pursuant to the MFA, FIL owns a financing interest in the equity interest in FTL. This financing interest is limited to the economic interest in the equity of FTL, and does not provide FIL with voting or disposition control in respect of FTL.
Item 4. Purpose of Transaction
On November 13, 2013, each of Telecom Italia S.p.A. (“TI”) and Telecom Italia International N.V. (“TII” and, together with TI, the “Sellers”) and Tierra Argentea S.A. (“TAR”) accepted from FTL an offer to acquire the Sellers’ entire controlling interest in the Issuer, held by the Sellers and through their subsidiaries Sofora, Nortel and TAR, pursuant to a Purchase Agreement (the “Purchase Agreement”), by and among, FTL, TAR and the Sellers, subject to prior Argentine regulatory approvals which were to be obtained within one year. In connection with the Purchase Agreement, the Sellers were to receive up to US $959.5 million from payments to be made by FTL and other persons. On October 24, 2014, the parties to the Purchase Agreement entered into an amended and restated Stock Purchase Agreement attached hereto as Exhibit 5 (the “Amended and Restated Purchase Agreement”) which maintained the aggregate consideration and payments of up to US $959.5 million to be received by Sellers from FTL and other persons and extended the maximum date for obtaining regulatory approvals to 2.5 years from the date of the amendment.
Page 7 of 22 |
Of the aggregate amount to be received by Sellers, an aggregate US$ 859.5 million was paid as consideration for the sale of:
· | 68.0% of the voting shares in Sofora (the “Sofora Shares”) held by the Sellers, divided between 17.0% of the voting shares in Sofora (the “Minority Sofora Shares”) held by the Sellers (US$ 200.2 million) and 51.0% of the voting shares in Sofora (the “Majority Sofora Shares”) held by the Sellers (US$ 550.6 million) ; | |
· | 15,533,834 Class B Shares held by TAR, representing 1.6% of the outstanding shares (US$ 61.2 million); and | |
· | 2,351,752 American Depositary Class B Shares, representing 117,588 Preferred B shares of Nortel (the “Nortel ADSs”) held by TAR, equal to 8.0% of the outstanding Preferred B shares of Nortel (US$ 47.5 million). |
The remaining US$ 100.5 million to be received by Sellers is paid pursuant to additional agreements related to the transaction, including an agreement to continue providing the Issuer companies technical support and other services for up to three years, the waiver by the Sellers of certain rights under, as well as amendments to, the current shareholders’ agreement relating to the Issuer with the Werthein Group who will retain 32.0% of the voting shares of Sofora, and the commitment of an affiliate of FTL to pay amounts already reserved for the payment of dividends by the Issuer (“Reserved Dividends”), if such dividends were not paid outside of Argentina by the Issuer to its shareholders prior to closing. The Issuer declared and paid Reserved Dividends in the amount of US$ 20.5 million, thereby reducing the aggregate consideration and payments in respect of the Reserved Dividends to US$ 0.
On October 29, 2014, FTL and the Sellers entered into a pledge agreement (the “Note Pledge Agreement”), attached as Exhibit 12, pursuant to which FTL granted to the Sellers a security interest in the Note (as defined below) with a principal amount of US$ 600.6 million (together with any additional collateral, the “Collateral”).
The sale to FTL of the 15,533,834 Class B Shares and the 2,351,752 Nortel ADSs held by TAR occurred on December 10, 2013. The sale to FTL of the Minority Sofora Shares occurred on October 29, 2014 (the “Interim Transfer Date”). On the Interim Transfer Date, FTL purchased a promissory note issued by TII and guaranteed by TI for a purchase price of US$ 600.6 million. The sale to FTL of the Majority Sofora Shares (the “Closing”) occurred on March 8, 2016 (the “Closing Date”). On the Closing Date, the Note was cancelled, the Sellers partially released their security interest in the Note under the Note Pledge Agreement in the amount of approximately US$ 570 million and a replacement note attached hereto as Exhibit 13 was issued for the balance in the amount of US$ 30 million. This US$30 million balance will be repaid within three months of the Closing Date.
Pursuant to the Amended and Restated Purchase Agreement, all members of the Board of Directors of Sofora, Nortel, the Issuer and its subsidiaries, including any alternate or independent members of the Board of Directors of such entities or any members of the supervisory committees of such entities (other than the Issuer), that were nominated or appointed, directly or indirectly, by any Seller were replaced by appointees or nominees of FTL effective as of the Closing Date.
Pursuant to Argentine Law Nbr. 26,831, FTL promoted on February 24, 2016, a mandatory tender offer in Argentina (“OPA”) to acquire the remaining Class B shares of TEO. The OPA remains subject to the prior approval of the Argentine Comisión Nacional de Valores.
On February 24, 2016, FTL filed a pre-commencement communication under cover of Schedule TO, announcing a possible U.S. tender offer by FTL for all or a portion of the Class B Shares. Included as an exhibit to the filing was an English translation of the notice regarding the mandatory tender offer that was filed in Argentina on the same date. FTL has not yet commenced the OPA or a U.S. tender offer.
On October 24, 2014, the Sellers and the Werthein Group entered into the amended and restated shareholders’ agreement attached hereto as Exhibit 6 (the “Shareholders’ Agreement”), amending the amended and restated shareholders’ agreement previously in force among the parties and regulating certain matters as to the corporate governance of Sofora, Nortel and the Issuer. On October 24, 2014, the Sellers, FTL and the Werthein Group entered into a deed of adherence attached hereto as Exhibit 1 (the “Deed of Adherence”) pursuant to which FTL was deemed party to the Shareholders Agreement as of the Interim Transfer Date and acquired all the rights and obligations of the Sellers under the Shareholders’ Agreement on the Closing Date.
In accordance with the Shareholders’ Agreement, the Werthein Group and FTL have the following rights under the Shareholders’ Agreement.
Following the Closing Date, FTL may nominate five of the nine Board Members of Sofora. Decisions are to be made by the majority of directors present at each meeting. The Werthein Group also has the right to nominate the Chairman of the Internal Auditors Committee (Comisión Fiscalizadora) of Sofora.
Page 8 of 22 |
With respect to Nortel and following the Closing Date, FTL may nominate four of the seven Board Members of Nortel. Decisions are to be made by the majority of directors present at each meeting. In case of a tie, the Chairman, nominated by FTL, shall cast the deciding vote. The Werthein Group will nominate the Chairman of the Audit Committee (Comité de Auditoría) of Nortel.
With respect to Nortel and following the Closing Date, pursuant to the Shareholders’ Agreement, FTL may nominate four of the seven Board Members of Nortel. An additional Board Member of Nortel is nominated jointly by FTL and the Werthein Group, provided that if there is no agreement on the jointly appointed Board Member then the Board Member is nominated by Sofora, which is controlled by FTL. As a result, FTL has nominated five of the seven Board Members of Nortel. Decisions are to be made by the majority of directors present at each meeting. In case of a tie, the Chairman, nominated by FTL, shall cast the deciding vote. The Werthein Group will nominate the Chairman of the Audit Committee (Comité de Auditoría) of Nortel.
The Chairman of the Issuer’s Board of Directors (i) will be an Argentine professional of recognized reputation; and (ii) will not have been appointed as director or officer by any direct or indirect competitor of the Issuer in the Argentinean telecommunications market within the previous 12 months from his appointment.
On March 8, 2016, all the conditions precedent provided under the Purchase Agreement were satisfied or waived, and the Closing was completed. Accordingly, as of the date hereof, David Martinez, FAI and FTL jointly hold 68% of Sofora share capital and the Werthein Group holds 32% of the Sofora share capital. The consideration for the Closing is described in Item 3. above. Following completion of the Closing and due to the rights granted under the Shareholders’ Agreement, David Martinez, FAI and FTL are deemed to indirectly control the Issuer.
The Shareholders’ Agreement also establishes a Steering Committee (Consejo de Dirección) for the Issuer, which is composed of four members, of which two are to be appointed by FTL and two by the Werthein Group. The Steering Committee is in charge of resolving matters concerning the Issuer’s business plan, annual budget and general employee compensation policy for the Issuer. The Steering Committee will validly resolve upon any matter with the affirmative vote of the majority of the members. If a matter is not approved by the majority of its members, the Board of Directors will resolve upon such matter. In addition, the following are also submitted to the Steering Committee for its approval: (i) the marketing plans of any business unit of the Issuer and Telecom Personal S.A. (“TP”, a 99.99% Issuer owned Argentinean corporation, active in the provision of mobile telecommunications services) and bids to be presented in public tenders (licitaciones públicas), exceeding Argentinean Pesos $ 5 million, in order to determine that the same do not violate the Argentinean Antitrust law; (ii) quarterly, the commercial offers to customers launched by the Issuer and TP during the prior 3-month period, in order to assess if the same comply with the Argentinean Antitrust law; and (iii) the appointment of the officer of the Issuer and TP responsible for Marketing and the officer responsible for the landline business unit (Telefonia Fija) of the Issuer for its approval. Such officers shall be persons who, in the preceding 36 (thirty-six) months, did not serve as a board member or officer of any company established in Argentina which is directly or indirectly controlled by Telefónica S.A.
Pursuant to the Shareholders’ Agreement, FTL and the Werthein Group have the right to call a meeting with the other party before any shareholders or Board of Directors meeting of Sofora, Nortel, the Issuer or any of its subsidiaries that will deliberate on matters (i) to be submitted to the shareholders meeting or (ii) connected with the preferred shareholders of Nortel, excluding resolutions to be adopted by certain non-executive committees. Two members appointed by FTL and one member appointed by the Werthein Group will attend the prior meetings and the decisions will be taken through the affirmative vote of the majority of its members.
The Werthein Group has certain veto rights upon matters, as follows:
(i) | the approval of any amendment to the by-laws, other than the amendments expressly set forth in the Shareholders’ Agreement; |
(ii) | dividend policy; |
(iii) | any capital increase or decrease, except for any capital increase or decrease connected to any possible debt restructuring; |
(iv) | changing the location of the headquarter offices; |
(v) | any acquisition of subsidiaries and/or creation of subsidiaries; |
(vi) | the sale, transfer, assignment or any other disposition of all or substantially all of the assets or any of its subsidiaries of the Issuer; |
(vii) | decisions relating to the establishment of joint ventures; |
Page 9 of 22 |
(viii) | constitution of any charges, liens, encumbrance, pledge or mortgage over assets, exceeding in the aggregate the amount of US$20,000,000; |
(ix) | any change of external auditors, to be chosen among auditors of international reputation; |
(x) | any related party transaction which is not carried out according to usual market conditions, exceeding the amount of US$5,000,000, with the exception of (i) any correspondent relationships, traffic agreement and/or roaming agreements with any national and/or international telecommunications carriers/operators, including the establishment, expansion or amendment of such correspondent relationships with any new telecommunications carriers; and (ii) any transaction connected with the debt restructuring; |
(xi) | any extraordinary transaction involving the Issuer group, exceeding the amount of US$30,000,000, except for any operation not connected with the debt restructuring of the Issuer group; and |
(xii) | any change to the rules of the Steering Committee, the Regulatory Compliance Committee or the Comité de Auditoría; and the creation, changes or dissolution of any committee of the Issuer group with similar functions. |
Certain of these veto rights terminate if the Werthein Group’s shareholding in Sofora falls below 32% and terminate in their entirety if such shareholding falls to 24% or below.
Additionally, pursuant to the Shareholders’ Agreement, the term in office of the members of the Board of Directors of the companies of the Issuer group shall be of three (3) years and the maximum number of the members of the Board of Directors of the Issuer shall be increased from nine (9) to eleven (11).
The above description of the Purchase Agreement, the Shareholders Agreement and other agreements executed in connection therewith is a summary and is qualified in its entirety by the terms of the agreements which are attached hereto as Exhibits 2 through 15 and are incorporated herein by reference.
Except as set forth above, none of the Reporting Persons have any plan or proposals that relate to or would result in any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D (although the Reporting Persons reserve the right to develop such plans or proposals).
Item 5. Interest in Securities of the Issuer
(a) As of the date of this filing, the Reporting Persons have the following direct beneficial ownership interests in the Class B Shares.
Directly Owned(1) |
Indirectly Owned |
Directly and Indirectly Owned | ||||
Number |
% of Class |
Number |
% of Class |
Number |
% of Class | |
David Martinez(2) | 0 | 0% | 54,918,467 | 11.39% | 54,918,467 | 11.39% |
FAI(3) | 0 | 0% | 54,918,467 | 11.39% | 54,918,467 | 11.39% |
FTL(4) | 18,086,059 | 3.75% | 36,832,408 | 7.64% | 54,918,467 | 11.39% |
Sofora(5) | 0 | 0% | 36,832,408 | 7.64% | 36,832,408 | 7.64% |
Nortel(6) | 36,832,408 | 7.64% | 0 | 0% | 36,832,408 | 7.64% |
(1) All percentages are based on 482,104,798 Class B Shares.
(2) David Martinez is the sole shareholder of FAI. FTL is a wholly-owned subsidiary of FTL. Consequently, David Martinez may be deemed to indirectly beneficially own all Class B Shares beneficially owned, directly and indirectly, by FTL.
(3) FTL is a wholly-owned subsidiary of FAI. Consequently, FAI may be deemed to indirectly beneficially own all Class B Shares beneficially owned, directly and indirectly, by FTL.
(4) FTL directly beneficially owns 68% of Sofora’s capital stock and thus may be deemed to indirectly beneficially own all of the Class B Shares indirectly beneficially owned by Sofora.
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(5) Sofora owns 5,330,400 ordinary shares of Nortel, representing 100% of the Nortel ordinary stock and 78.38% of the Nortel capital stock. The outstanding Class B preferred shares of Nortel represent respectively 21.62% of the capital stock of Nortel. The ordinary shares are the only class of full voting stock. The Class B preferred shares have no voting rights and the American Depositary Receipts representing them are listed on the NYSE. Sofora does not own any such Class B preferred shares of Nortel. Consequently, Sofora may be deemed to indirectly beneficially own all of the Class B Shares directly beneficially owned by Nortel.
(6) Nortel owns 502,034,299 Class A ordinary shares of the Issuer (representing 100% of this class and 51% of the Issuer’s total capital stock) and 36,832,408 Class B ordinary shares of the Issuer (representing approximately 7.64% of this class and 3.74% of the Issuer’s total capital stock). In aggregate Nortel owns 538,866,707 ordinary shares, representing approximately 54.74% of the capital stock and of the voting power of the Issuer.
(b) FTL has the sole power to vote, dispose and direct the disposition of the Class B Shares directly beneficially owned by it (the “FTL-Owned Class B Shares”). FAI exercises its rights over the FTL-Owned Class B Shares indirectly through FTL, and David Martínez exercises his rights over the FTL-Owned Class B Shares indirectly through FAI and FTL. Nortel has the sole power to vote, dispose and direct the disposition of the Class B Shares directly beneficially owned by it (the “Nortel-Owned Class B Shares”). Sofora exercises its rights over the Nortel-Owned Class B Shares indirectly through Nortel, FTL exercises its rights over the Nortel-Owned Class B Shares indirectly through Sofora and Nortel, FAI exercises its rights over the Nortel-Owned Class B Shares indirectly through , FTL, Sofora and Nortel and David Martinez exercises his rights over the Nortel-Owned Class B Shares indirectly through FAI, FTL Sofora and Nortel.
(c) All transactions in Class B Shares effected by the Reporting Persons during the 60 day period ended March 18, 2016 are listed in Schedule C hereto.
(d) Pursuant to the Master Financing Agreement, FIL provided financing to FTL in connection with the transactions described herein. This financing interest is limited to the economic interest in the equity of FTL (and, indirectly, in the Issuer), and does not provide FIL with voting or disposition control in respect of FTL (or, indirectly, the Issuer).
(e) Inapplicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
Other than as described in this Item 6 and in Items 3, 4 and 5 above, which are incorporated herein by reference, and in the agreements attached as exhibits hereto or incorporated herein by reference, to the best knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise), including, but not limited to, transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, between the persons enumerated in Item 2, and any other person, with respect to any securities of the Issuer, including any securities pledged or otherwise subject to a contingency the occurrence of which would give another person voting power or investment power over such securities other than standard default and similar provisions contained in loan agreements.
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Item 7. Material to Be Filed as Exhibits
Exhibit Number | Description |
1 | Amended and Restated Deed of Adherence, dated as of October 24, 2014, among the Sellers, FTL and the Werthein Group. |
2 | Amended and Restated Drag Waiver Memorandum of Understanding, dated as of October 24, 2014, among W de Argentina – Inversiones S.A., Los W S.A., Messrs. Daniel Werthein, Adrian Werthein, Gerardo Werthein and Dario Werthein, and the Sellers. |
3 | Amended and Restated Guaranty, dated as of October 24, 2014, among FTL and the Sellers. |
4 | Amended and Restated Mutual Shareholder Release, dated as of October 24, 2014, among the Sellers and the Werthein Group. |
5 | Amended and Restated Stock Purchase Agreement, dated as of October 24, 2014, among FTL, the Sellers and TAR. |
6 | Amended and Restated Third Amendment to the Shareholders’ Agreement, dated as of October 24, 2014, among the Sellers and the Werthein Group. |
7 | Amended and Restated Transition Services Memorandum of Understanding, dated as of October 24, 2014, among FTL and the Sellers. |
8 | Amended and Restated Waiver, dated as of October 24, 2014, among the Sellers and the Werthein Group, acknowledged by FTL. |
9 | Drag Rights Letter Agreement, dated as of October 24, 2014, among FTL, the Sellers and the Werthein Group. |
10 | Note Purchase Agreement, dated as of October 24, 2014, between TII and FTL. |
11 | Purchase Release, dated as of October 24, 2014, among the Sellers and FTL. |
12 | Note Pledge Agreement, dated as of October 29, 2014, among FTL and the Sellers. |
13 | Replacement Note, dated as of March 8, 2016, issued by TII. |
14 | Amended and Restated Master Financing Agreement, dated as of March 16, 2016, between FIL and FAI. |
15 | Joint Filing Agreement, dated as of March 18, 2016, by and among David Martínez, FAI, FTL, Sofora and Nortel. |
Page 12 of 22 |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: March 18, 2016
DAVID MARTÍNEZ |
By: /s/ David Martìnez |
FINTECH ADVISORY, INC. |
By: /s/ Erika Mouynes |
Name: Erika Mouynes |
Title: Authorized Person |
FINTECH TELECOM, LLC |
By: /s/ Erika Mouynes |
Name: Erika Mouynes |
Title: Authorized Person |
By: /s/ Julio Rafael Rodriguez Jr. |
Name: Julio Rafael Rodriguez Jr. |
Title: Authorized Person |
SOFORA TELECOMUNICACIONES, S.A. |
By: /s/ Saturnino Funes |
Name: Saturnino Funes |
Title: President |
NORTEL INVERSORA, S.A. |
By: /s/ Javier Errecondo |
Name: Javier Errecondo |
Title: President |
Page 13 of 22 |
SCHEDULE A
The following sets forth the name, citizenship, present principal occupation or employment of each director and executive officer and other person ultimately in control of each of the Reporting Persons. The business address for David Martínez is 26 St. James's Street, London SW1A 1HA, England. The business address for each other director and officer is c/o Fintech Advisory Inc. 375 Park Avenue, 38th Floor, New York, NY 10152. To the best of the Reporting Persons’ knowledge, except as set forth on Schedule 13D, none of the directors or executive officers of the Reporting Persons own any Class B Shares.
FINTECH ADVISORY, INC. | |||
Name | Position | Citizenship | Principal Occupation or Employment |
David Martínez | President of the Board of Directors of FAI | United Kingdom | President of the Board of Directors of FAI |
Ricardo Guajardo Touche | Director | Mexican | Banker |
Ernesto Canales | Director | Mexican | Founding Partner, Despacho Canales Abogados |
Javier Fernandez | Director | Mexican | Investment Manager Advisor |
Julio R. Rodriguez, Jr. | Chief Operating Officer | United States | Officer of FAI |
Erika Mouynes | Secretary | United States | Officer of FAI |
Elizabeth Guarnieri | Treasurer | United States | Officer of FAI |
SOFORA TELECOMUNICACIONES S.A. | |||
Name | Position | Citizenship | Principal Occupation or Employment |
Saturnino Jorge Funes
|
President of the Board of Directors
|
Argentine
|
Lawyer; Partner at Errecondo Gonzalez & Funes Abogados
|
Adrián Werthein | Director | Argentine | Businessman; Shareholder of W de Argentina Inversiones S.A. |
Javier Errecondo
|
Director
|
Argentine
|
Lawyer; Partner at Errecondo Gonzalez & Funes Abogados
|
Eduardo Federico Bauer
|
Director
|
Argentine
|
Lawyer; Legal Director of Werthein Group
|
Pablo Rodrigo Tarantino | Director | Argentine | Lawyer; Member of the Legal Direction of Werthein Group |
Page 14 of 22 |
Ignacio Villarroel
|
Director
|
Argentine
|
Lawyer
|
Ricardo Alberto Ferreiro | Director | Argentine | Lawyer |
Guillermo Luis Navone | Director | Argentine | Businessman |
Juan Rodolfo Bellusci | Alternate Director | Argentine | Lawyer |
Christian Whamond | Alternate Director | Argentine | Director, Corporate Credit, Fintech Advisory Inc. |
Ariel Grignaffini | Alternate Director | Argentine | Director, Corporate Credit, Fintech Advisory Inc. |
José Luis Galimberti | Alternate Director | Argentine | Lawyer |
Pablo Edgardo Cacici | Alternate Director | Argentine | Lawyer |
Lucas
Peres |
Alternate Director | Argentine | Lawyer |
NORTEL INVERSORA S.A. | |||
Name | Position | Citizenship | Principal Occupation or Employment |
Javier Errecondo
|
President of the Board of Directors
|
Argentine
|
Lawyer; Partner at Errecondo Gonzalez & Funes Abogados
|
Eduardo Federico Bauer | Director | Argentine | Lawyer |
Saturnino Jorge Funes
|
Director
|
Argentine
|
Lawyer; Partner at Errecondo Gonzalez & Funes Abogados
|
Julio Pedro Naveyra | Director | Argentine | Accountant |
Jose Luis Galimberti
|
Director
|
Argentine
|
Lawyer
|
Pablo Rodrigo Tarantino | Director | Argentine | Lawyer; Member of the Legal Direction of the Werthein Group |
José Carlos Cura
|
Director
|
Argentine
|
Financial Advisor
|
Fabiana Leticia Marges
|
Director
|
Argentine
|
Accountant
|
Patricio Gomez Sabaini | Director | Argentine | Businessman. Partner at “Sur Capital Partners” (“SCP”) |
Ariel Grignaffini | Alternate Director | Argentine | Director, Corporate Credit, Fintech Advisory Inc. |
Christian Whamond | Alternate Director | Argentine | Director, Corporate Credit, Fintech Advisory Inc. |
Ignacio Villarroel | Alternate Director | Argentine | Lawyer |
Juan Ignacio Constantino | Alternate Director | Argentine | Businessman |
Maria Blanco Salgado | Officer in charge of Market Relations | Argentine | Officer of Nortel |
Page 15 of 22 |
SCHEDULE B
RESIGNING DIRECTORS, SYNDICS AND THEIR ALTERNATES |
A. Non-Independent Resigning Directors (designated by TI):
SOFORA
Patrizio Graziani (Chairman)
Lorenzo Canu
Francesca Petralia
Jorge Alberto Firpo (Alternate Director)
Diego Serrano Redonnet (Alternate Director)
NORTEL
Patrizio Graziani (Chairman)
Andrea Balzarini
Lorenzo Canu
Diego Serrano Redonnet (Alternate Director)
TELECOM ARGENTINA
Francesca Petralia
Gianfranco Ciccarella
Andrea Mangoni
Piergiorgio Peluso
Jorge Luis Perez Alati (Alternate Director)
Lorenzo Canu (Alternate Director)
Jorge Alberto Firpo (Alternate Director)
TELECOM PERSONAL
Elisabetta Ripa (Chairman)
Patrizia Alfiero
Lorenzo Canu
Jorge Alberto Firpo (Alternate Director)
Diego Serrano Redonnet (Alternate Director)
TELECOM ARGENTINA USA
Jorge Alberto Firpo
Maximo Domingo Lema
Pedro Gaston Insussarry
Page 16 of 22 |
NUCLEO
Juan Carlos Pepe (Chairman)
Pedro Gaston Insussarry
Anibal Roberto Gomez
Hector Gaspar Buscalia
Pedro Guillermo Arano (Alternate Director)
Hernan E. Colombo (Alternate Director)
J. Manuel Correa Cuenca (Alternate Director)
Martin Andres Heine (Alternate Director)
PERSONAL ENVÍOS S.A.
Juan Carlos Pepe (Chairman)
Pedro Gaston Insussarry
Anibal Roberto Gomez
Gaspar Hector Buscalia
Hernan E. Colombo (Alternate Director)
Pedro Guillermo Arano (Alternate Director)
J. Manuel Correa Cuenca (Alternate Director)
Martin Andres Heine (Alternate Director)
MICROSISTEMAS
Andrea Viviana Cerdan (Chairman)
Pedro Guillermo Arano
Alejandra Lea Martinez (Alternate Director)
Syndics:
SOFORA
Cristian A. Kruger
Fernando S. Zoppi
Maria Gabriela Grigioni (Alternate Syndic)
Pablo Rueda (Alternate Syndic)
Page 17 of 22 |
NORTEL
Ignacio Arrieta (Chairman)
Jaqueline Berzon (Alternate Syndic - Arrieta)
Diego Martin Garrido
Maria Marta Cancio (Alternate Syndic – Garrido)
Page 18 of 22 |
TELECOM ARGENTINA
Evelina Leoni Sarrailh (Chairman)
Gonzalo Francisco Oliva Beltran (Alternate Syndic – Sarrailh)
Susana M. Chiaramoni
Jaqueline Berzon (Alternate Syndic - Chiaramoni)
Gustavo Adrian E. Gené
Alberto Gustavo Gonzalez (Alternate Syndic – Gené)
TELECOM PERSONAL
Diego Martin Garrido (Chairman)
Marta Maria Cancio (Alternate Syndic – Garrido)
Eugenio Andra J. Bruno
Augustin J. Cases Bocci (Alternate Syndic - Bruno)
NUCLEO
Fernando Gimenez Marimon
Diego Cuevas Giardina (Alternate Syndic)
PERSONAL ENVÍOS S.A.
Fernando Gimenez Marimon
Diego Cuevas Giardina (Alternate Syndic)
MICROSISTEMAS
Fernando S. Zoppi (Chairman)
Cristian A. Kruger
Maria Gabriela Grigioni (Alternate Syndic)
Pablo Rueda (Alternate Syndic)
B. Independent Resigning Directors (designated by TI):
SOFORA
Oscar Carlos Cristianci
Aldo Raul Bruzoni
Daniel Falck (Alternate Director - Cristianci)
Page 19 of 22 |
NORTEL
Domingo Jorge Messuti
Daniel Falck (Alternate Director – Messuti)
TELECOM ARGENTINA
Oscar Carlos Cristianci (Chairman)
Enrique Llerena
Aldo Raul Bruzoni (Alternate Director – Cristianci)
Maria Virginia Genoves (Alternate Director—Llerena)
REPLACEMENT DIRECTORS, SYNDICS AND THEIR ALTERNATES | |||||
SOFORA TELECOMUNICACIONES S.A. | |||||
Name | Address | Citizenship | Principal Occupation or Employment | ||
Saturnino Funes (Director) | Bouchard 680 , Floor 14, Buenos Aires, Argentina | Argentine | Lawyer; Partner at Errecondo Gonzalez & Funes Abogados | ||
Javier Errecondo (Director) | Bouchard 680 , Floor 14, Buenos Aires, Argentina | Argentine | Lawyer; Partner at Errecondo Gonzalez & Funes Abogados | ||
Ignacio Villarroel (Director) | Juncal 839, Floor 8, Buenos Aires, Argentina | Argentine | Lawyer | ||
Guillermo Luis Navone (Director) | Esmeralda 1319, 2nd Group 3, Buenos Aires, Argentina | Argentine | Businessman | ||
Juan Rodolfo Bellusci (Director) | Lafinur 2954, 4D. Buenos Aires, Argentina | Argentine | Lawyer | ||
Christian Whamond (Alternate Director) | 375 Park Avenue, Floor 38, New York, NY | Argentine | Director, Corporate Credit, Fintech Advisory Inc. | ||
Ariel Grignaffini (Alternate Director) | 375 Park Avenue, Floor 38, New York, NY | Argentine | Director, Corporate Credit, Fintech Advisory Inc. | ||
José Luis Galimberti (Alternate Director) | Azucena Villaflor 350, Floor 7, Apt 705, Buenos Aires, Argentina | Argentine | Lawyer | ||
Pablo Edgardo Cacici (Alternate Director) | Rivadavia 5224, Floor 2B, Buenos Aires, Argentina | Argentine | Lawyer | ||
Lucas Peres (Alternate Director) | Arroyo 894, Floor 1, Buenos Aires, Argentina | Argentine | Lawyer | ||
NORTEL INVERSORA S.A. | |||||
Name | Address | Citizenship | Principal Occupation or Employment | ||
Javier Errecondo (Director) | Bouchard 680 , Floor 14, Buenos Aires, Argentina | Argentine | Lawyer; Partner at Errecondo Gonzalez & Funes Abogados |
Page 20 of 22 |
Saturnino Funes (Director) | Bouchard 680 , Floor 14, Buenos Aires, Argentina | Argentine | Lawyer; Partner at Errecondo Gonzalez & Funes Abogados | ||
José Luis Galimberti (Director) | Azucena Villaflor 350, Floor 7, Apt 705, Buenos Aires, Argentina | Argentine | Lawyer | ||
José Carlos Cura (Director) | Pellegrini 75, Chivilcoy, Buenos Aires, Argentina | Argentine | Financial Advisor | ||
Patricio Gomez Sabaini (Director) | Av Figueroa Alcorta 3066, Floor 6, Buenos Aires, Argentina | Argentine | Partner at “Sur Capital Partners” (“SCP”), a Private Equity Fund | ||
Ariel Grignaffini (Alternate Director) | 375 Park Avenue, Floor 38, New York, NY | Argentine | Director, Corporate Credit, Fintech Advisory Inc. | ||
Christian Whamond (Alternate Director) | 375 Park Avenue, Floor 38, New York, NY | Argentine | Director, Corporate Credit, Fintech Advisory Inc. | ||
Ignacio Villarroel (Alternate Director) | Juncal 839, Floor 8, Buenos Aires, Argentina | Argentine | Lawyer | ||
Juan Ignacio Constantino (Alternate Director) | Av. Coronel Diaz 2857, Buenos Aires, Argentina | Argentine | Businessman | ||
TELECOM ARGENTINA S.A. | |||||
Name | Address | Citizenship | Principal Occupation or Employment | ||
Mariano Ibañez (Director) | Alicia Moreau de Justo 50, Buenos Aires, Argentina | Argentine | Professional Manager | ||
David Manuel Martínez (Director) | 26 St. James's Street, London SW1A 1HA, United Kingdom | United Kingdom | President of the Board of Directors of FAI | ||
Carlos Alejandro Harrison (Director) | General Pacheco 1645, El Talar, Buenos Aires, Argentina | Argentine | Professional Manager; CEO at YAQ S.A. Productions | ||
Martín Hector D´Ambrosio (Director) | Godoy Cruz 2973, Floor 5, 7, Buenos Aires, Argentina | Argentine | Lawyer | ||
Pedro Chomnalez (Director) | 179 E 71st Street New York, New York | Argentine | Financial Advisor | ||
Alejandro MacFarlane (Director) | Libertador 2234, Floor 3, Buenos Aires, Argentina | Argentine | Businessman | ||
Christian Whamond (Alternate Director) | 375 Park Avenue, Floor 38, New York, NY | Argentine | Director, Corporate Credit, Fintech Advisory Inc. | ||
José Luis Galimberti (Alternate Director) | Azucena Villaflor 350, Floor 7, Apt 705, Buenos Aires, Argentina | Argentine | Lawyer | ||
Ignacio Villarroel (Alternate Director) | Juncal 839, Floor 8, Buenos Aires, Argentina | Argentine | Lawyer | ||
Saturnino Funes (Alternate Director) | Bouchard 680 , Floor 14, Buenos Aires, Argentina | Argentine | Lawyer; Partner at Errecondo Gonzalez & Funes Abogados | ||
Bernardo Saravia Frias (Alternate Director) | Arroyo 894, Floor 1, Buenos Aires, Argentina | Argentine | Lawyer | ||
Gabriel Hugo Fissore (Alternate Director) | Santa Fe 1621, Floor 6, Buenos Aires, Argentina | Argentine | Lawyer | ||
Page 21 of 22 |
SCHEDULE C
Within the past sixty days, FTL acquired the following Class B Shares:
Entity | Type of Transaction | Number of ADSs* | Date Sale Settled | Price per ADS |
FTL | Trade | 2,367,926 | February 23, 2016 | US$ 14.98 |
* Each American Depositary Share, or ADS, represents five Class B Shares.
Page 22 of 22 |
1.
|
Adherence and Undertakings
|
2.
|
Notices
|
Sincerely, | |||
Fintech Telecom LLC | |||
|
By:
|
Fintech Advisory, Inc. | |
Its | Managing Member | ||
By: | /s/ Erika Mouynes | ||
Name: | Erika Mouynes | ||
Title: | Authorized Person | ||
By: | /s/ Julio Rafael Rodriguez, Jr. | ||
Name: | Julio Rafael Rodriguez, Jr. | ||
Title: | Authorized Person |
Telecom Italia S.p.A. | |||||
By: | /s/ Andrea Balzarini | ||||
Name: Andrea Balzarini | |||||
Title: Authorized Representative
|
Telecom Italia International N.V. | |||||
By: | /s/ Francesco S. Lobianco | ||||
Name: Francesco S. Lobianco | |||||
Title: Chief Executive Officer
|
Gerardo Werthein
|
||||
/s/ Gerardo Werthein
|
Los W Guarantor Company | ||||
Gerardo Werthein
|
||||
/s/ Gerardo Werthein
|
Los W Controlling Shareholders | ||||
Dario Werthein | Daniel Werthein | |||
/s/ Dario Werthein
|
/s/ Daniel Werthein
|
Adrian Werthein | Gerardo Werthein | |||
/s/ Adrian Werthein
|
/s/ Gerardo Werthein
|
To:
|
|
Telecom Italia S.p.A.
Milan
Italy
|
Telecom Italia International
N.V.
Strawinskylaan 1627
1077XX Amsterdam
|
CC:
|
|
Fintech Telecom, LLC
375 Park Avenue
38th Floor,
New York, New York
USA
|
1.
|
We make reference to: (a) the amended and restated shareholders’ agreement dated August 5, 2010 (as amended, modified supplemented, the “Shareholders’ Agreement”) among Telecom Italia S.p.A., a company duly organized and existing under the laws of Italy with its registered office at Piazza degli Affari, 2, Milan, Italy (“TI”) and Telecom Italia International N.V., a company duly organized and existing under the laws of The Netherlands with its registered office at Strawinskylaan 1627, 1077XX Amsterdam (“TII” and together with TI, the “Sellers”), W de Argentina – Inversiones S.A. (formerly denominated W de Argentina – Inversiones S. L.), a company organized and existing under the laws of the Kingdom of Spain (“Los W”), Los W S.A., a company duly organized and existing under the laws of Argentina and the guarantor company of Los W (the “Los W Guarantor Company”), and Messrs. Daniel Werthein, Adrian Werthein, Gerardo Werthein and Dario Werthein (the “Los W Controlling Shareholders” and, collectively with Los W and the Los W Guarantor Company, “we” or the “Los W Parties”); (b) the Stock Purchase Agreement dated November 13, 2013 among the Sellers, Tierra Argentea S.A. (“TAR”) and Fintech Telecom LLC, a limited liability company duly organized and existing under the laws of Delaware (the “Purchaser”), in connection with your sale of all of your direct and indirect ownership interests in Telecom Argentina S.A. (as amended on August 11, 2014, September 1, 2014 and September 28, 2014, the “Original SPA”); and (c) the Offer made by Los W Parties and accepted by Sellers on November 13, 2013 (the “Original Drag Waiver”) providing, inter alia, for payment by Los W Parties to the Sellers of the Waiver and Amendment Fee (as defined therein) in consideration of the
|
2.
|
As informed by Purchaser, we are aware that the Sellers and the Purchaser are amending the terms of the Original SPA in their entirety (as further amended from time to time by agreement among the parties thereto (or, if any amendment thereto results in any change or limitations of any rights and obligations of any of the Los W Parties under the Shareholders’ Agreement or the By-laws of Sofora (other than as agreed herein), by the parties thereto with the consent of the Los W Parties), the “Amended SPA”), a copy of which as of the date hereof is attached as Exhibit B hereto, with the Purchaser, pursuant to which the parties thereto may, inter alia: (a) sell their Minority Sofora Shares to the Purchaser (and/or a Substitute Purchaser) at the Interim Transfer Date; (b) sell their Majority Sofora Shares to the Purchaser (and/or a Substitute Purchaser) at the Closing Date; (c) sell the Majority Sofora Shares (with or without the Minority Sofora Shares) to an Adequate Purchaser at the Third Party Closing Date; or (d) sell the Minority Sofora Shares pursuant to the Minority Call Option. We are further aware that the Sellers’ agreement to enter into the Amended SPA with the Purchaser will be conditioned upon and in consideration of, among other things, this Offer to amend and restate the Original Drag Waiver, and its acceptance by the Sellers becoming and remaining effective in accordance with its terms. We acknowledge that we have read the Amended SPA in its entirety.
|
3.
|
In light of the execution of the Amended SPA and of the intention of the Los W Parties to preserve their current 32.00% stake in Sofora, the Los W Parties are pleased to submit this offer to the Sellers (the “Offer”) upon acceptance of which Los W Parties agree to: (i) amend and restate the Original Drag Waiver to read in its entirety in accordance with this Offer; and (ii) pay the Sellers an aggregate consideration of US$50,000,000 (the “Wavier and Amendment Fee”), on the Closing Date and subject to the occurrence of the Closing; all in order to induce the Sellers to enter into the Amended SPA and consummate the Minority Sale and Majority Sale or the third Party Sale (as the case may be). The Wavier and Amendment Fee will be paid at Closing by (or on behalf of) the Los W Parties in US Dollars and by wire transfer of immediately available funds to such account as the Sellers shall designate in writing to the Los W Parties (with a copy to the Purchaser) not less than two (2) Business Days prior to the Closing Date (each a “Designated Bank Account”); provided that each Designated Bank Account shall be located outside of Argentina. The Wavier and Amendment Fee will be paid to TI and TII in proportion to their relative ownership of the Majority Sofora Shares. For the avoidance of doubt the Wavier and Amendment Fee shall only be payable if a Majority Sale is effected and therefore shall not be payable in case of a Third Party Sale.
|
4.
|
As consideration for the foregoing, the Sellers shall (i) grant a waiver of their Drag Along Rights under the Shareholders’ Agreement in respect of the Minority Sale and Majority Sale and in respect of any Third Party Sale consummated prior to the Final Date, as the case may be, (the “Drag Waiver”) and (ii) amend, conditional upon Closing and effective as of the Closing Date or conditional upon the closing of a Third Party Sale and effective as of the Third Party Closing Date, as the case may be, Appendix A to the Shareholders’ Agreement so as to eliminate the 30% discount provided in connection with the calculation of the Non-Selling Parties Stake in the event that TI and TII are the Selling Party (the “Amendment”), by executing and delivering the amendment agreement attached at Exhibit D hereto on the date hereof; provided that the effectiveness of such Amendment Agreement shall not be a condition to the payment of the Wavier and Amendment Fee on the Closing Date. For the avoidance of doubt, the Drag Waiver shall be granted for the Minority Sale, and, as the case may be, the Majority Sale or the Third Party Sale.
|
5.
|
It is hereby acknowledged and agreed that the obligations of the Los W Parties in respect of this Offer are subject to the occurrence of the Closing, and that the Sellers shall have no claim, right or course of action whatsoever against the Los W Parties under this Offer in the event that the Closing is not consummated, and that the obligations of the Sellers in respect of this Offer (excluding the Drag Waiver and execution of the Amendment) are subject to the occurrence of the Closing or the closing of a Third Party Sale, as the case may be, and that the Los W Parties shall have no claim, right or course of action whatsoever against the Sellers in the event that the Closing or the closing of a Third Party Sale, as the case may be, is not consummated in accordance with the terms of the Amended SPA.
|
6.
|
This Offer shall become effective upon acceptance by the Sellers by delivering to the Los W Parties a letter in the form attached at Exhibit C (the “Acceptance Letter”) accepting this Offer in its entirety and expressly referencing “Los W Parties Binding Offer”. Upon delivery of such Acceptance Letter, the Sellers will be deemed to have (x) accepted the Offer, (y) granted the Drag Waiver and (z) agreed to the Amendment effective on the Closing Date or the closing of a Third Party Sale, as the case may be, and to all of the terms and conditions set forth in this Offer, which shall become a binding agreement between the Sellers and the Los W Parties. If: (a) the Closing does not occur on or prior to the Outside Date, other than due to the failure of the Los W Parties to comply with any of the obligations imposed by this Offer, the obligation to pay the Wavier and Amendment Fee shall be terminated or, in the event that the Wavier and Amendment Fee shall have already been paid by the Los W Parties (or by a third party on behalf of Los W Parties), such amount paid shall be returned to the Los W Parties (or to such person that the Los W Parties indicate); (b) either (i) the Sellers choose the Unwind Option on the Decision Date or (ii) the closing of a Third Party Sale does not occur on or prior to the Final Date, the Drag Waiver and Amendment shall no longer be effective and any obligation of the Sellers to grant such Drag Waiver or amend the Shareholders’ Agreement shall be terminated.
|
7.
|
Each of the Sellers and the Los W Parties shall bear its own costs and expenses and applicable taxes and the costs and expenses of their legal counsel and other advisors
|
8.
|
This Offer shall terminate if (i) a definitive Amended SPA is not executed within two (2) Business Days of the date hereof or (ii) the Offer is not accepted by Sellers on the date that is two (2) Business Days after date of execution of the Amended SPA. This Offer shall be irrevocable and binding on the Los W Parties until its termination in accordance with this paragraph 8.
|
9.
|
This Offer (a) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof and (b) is not intended to confer any rights or remedies upon any Person other than the parties hereto.
|
10.
|
This Offer, the legal relations between the Sellers and the Los W Parties and any active or pending action, complaint, petition, investigation, suit, litigation or other proceeding, whether civil, administrative or criminal, in law or in equity, or before any arbitrator or public authority, whether contractual or non-contractual, instituted by any Party with respect to matters arising under or growing out of or in connection with or in respect of this Offer shall be governed by and construed in accordance with the laws of the State of New York (including without limitation Section 5-1401 of the General Obligations Law of the State of New York) applicable to contracts made and performed in such State and without regard to conflicts of law or private international law rules.
|
11.
|
Any dispute, claim or controversy arising from, relating to, or in connection with this Offer, including without limitation any question regarding its existence, validity, termination, or the performance or breach thereof, shall be referred to and finally resolved and settled by arbitration administered by the International Chamber of Commerce International Court of Arbitration (the “ICC”), in accordance with the ICC Rules of Arbitration in effect at the time of the arbitration, which rules are deemed to be incorporated by reference into this paragraph except as they may be modified herein or by agreement of the Parties. Each Party hereby irrevocably waives its right to commence any proceedings in any court with respect to any matter subject to arbitration under this Offer. The arbitral tribunal shall consist of three arbitrators. Each Party shall nominate one arbitrator, the Party requesting arbitration concurrently with such request and the other Party within fifteen (15) calendar days from receipt of the request for arbitration. In the event a Party fails to nominate an arbitrator or deliver notification of such nomination to the other Party and to the ICC within this time period, upon request of either Party, such arbitrator shall instead be appointed by the ICC within fifteen (15) calendar days receiving such request in accordance with the Rules of Arbitration. The two arbitrators appointed in accordance with the above provisions shall nominate the third arbitrator and notify the Parties and the ICC in writing of such nomination within fifteen (15) calendar days of their appointment. If the first two appointed arbitrators fail to nominate a third arbitrator or notify the Parties and the ICC of that nomination within this time period, then, upon request of either Party, the third arbitrator shall be appointed by the ICC within fifteen (15) calendar days of receiving such request in accordance with the Rules of Arbitration. The third arbitrator shall serve as Chairman
|
12.
|
Any term or provision of this Offer that is held by an arbitral panel or court to be invalid, void or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final ruling of the arbitral panel declares that any term or provision hereof is invalid, void or unenforceable, the Parties agree that the panel making such determination shall have the power to reduce the scope, duration, area or applicability of the term or provision, to delete specific words or phrases, or to replace any invalid, void or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision.
|
13.
|
Neither this Offer nor any of the rights, interests or obligations hereunder shall be assigned by the Los W Parties or any Seller (whether by operation of law or otherwise) without the prior written consent of the other Parties.
|
14.
|
The Parties acknowledge (a) that this Offer is a material agreement between the Los W Parties and the Sellers and required to be in full force and effect as of (i) the Interim Transfer Date as a condition to the obligations of the Sellers to complete the Minority Sale and (ii) the Closing Date as a condition to Closing and (b) that as of the Third Party Closing Date, as a condition to the Third Party Closing, the Sellers shall not have revoked the Drag Waiver or the Amended And Restated Amendment No. 3 to the Shareholders Agreement, dated as of October 24, 2014.
|
15.
|
It is hereby agreed and acknowledged by the Parties that money damages may be an inadequate remedy for a failure to comply with any of the obligations imposed by this
|
16.
|
The Los W Parties represent and warrant to the Sellers that the following statements are true and correct as of the date hereof, as of the Interim Transfer Date, the Closing Date, the date of acceptance of any Qualifying Offer (as defined in the Amended SPA) and the Third Party Closing Date (as applicable).
|
|
a.
|
Los W and the Los W Guarantor Company are duly organized, validly existing and in good standing under the laws of their jurisdiction of formation and have all requisite power and authority to make this Offer and to carry out their obligations hereunder. Los W and the Los W Guarantor Company are duly licensed or qualified to do business and are in good standing in each jurisdiction in which the properties owned or leased by them or the operation of their business makes such licensing or qualification necessary, except to the extent that the failure to be so licensed or qualified or in good standing would not, individually or in the aggregate, have a material adverse effect on Los W or the Los W Guarantor Company’s ability to perform their obligations under this Offer. The execution and delivery of this Offer by Los W and the Los W Guarantor Company and the performance by Los W and the Los W Guarantor Company of their obligations hereunder upon and after acceptance of this Offer have been duly authorized by all requisite action on the part of Los W and the Los W Guarantor Company and their stockholders or members, as applicable.
|
|
b.
|
The Los W Controlling Shareholders have all requisite power and authority to make this Offer and to carry out their obligations hereunder.
|
|
c.
|
This Offer has been duly executed and delivered by the Los W Parties and, assuming due and valid authorization, execution and delivery by the Sellers of the Acceptance Letter, this Offer constitutes a legal, valid and binding obligation of the Los W Parties, enforceable against the Los W Parties in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar Laws of general application affecting enforcement of creditors’ rights generally and (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought.
|
|
d.
|
The execution, delivery and performance by the Los W Parties of this Offer does not and will not: (i) violate, conflict with or result in any breach of any provision of the certificates of incorporation or bylaws (or similar organizational documents) of the Los W Parties (in respect of Los W and the Los W Guarantor Company), (ii) require the Los W Parties to make any filing with, obtain any permit, authorization, consent or approval from, or provide any notification to, any Governmental Entity, (iii) result in a violation or breach of, or, with or
|
|
e.
|
The Los W Parties have and will at all times prior to the payment in full of the Wavier and Amendment Fee have sufficient cash on hand or other sources of funds immediately available without conditions, to enable the Los W Parties to pay the Wavier and Amendment Fee in full in immediately available funds in US Dollars outside of Argentina on the Closing Date. No additional financing is required by the Los W Parties in connection with the Offer and the consummation of any of the Los W Parties’ obligations with respect thereto.
|
|
f.
|
The Los W Parties are informed and sophisticated parties and in making this Offer are not relying on any representations or warranties of the Sellers, and the Sellers have given no representations or warranties in connection herewith.
|
|
g.
|
None of the assets of the Los W Parties or any Affiliate of the Los W Parties has been reported as blocked assets to the Office of Foreign Assets Control, U.S. Department of Treasury (“OFAC”), pursuant to the OFAC reporting requirements (31 C.F.R. Section 501.603). None of the Los W Parties nor any Affiliates of the Los W Parties is (i) a person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by OFAC (such person, an “OFAC Listed Person”) or is a department, agency or instrumentality of, or is otherwise controlled by or acting on or behalf of, directly or indirectly, (i) an OFAC Listed Person or (ii) a government or any country that is the target of any of the several economic sanctions programs administered by OFAC (31 C.F.R. Parts 500 through 598) (either of the entities described in (i) or (ii), a “Blocked Person”). None of the funds used to pay the Waiver and Amendment Fee or any other amounts pursuant hereto constitute or will constitute funds obtained from or on behalf of any OFAC Listed Person or any Blocked Person.
|
W DE ARGENTINA – INVERSIONES S.A.
/s/ Gerardo Werthein
|
LOS W S.A.
/s/ Daniel Werthein
|
||
By: Gerardo Werthein
Title: Chairman
|
By: Daniel Werthein
Title: Chairman
|
||
DARIO WERTHEIN
/s/ Dario Werthein
|
DANIEL WERTHEIN
/s/ Daniel Werthein
|
||
ADRIAN WERTHEIN
/s/ Adrian Werthein
|
GERARDO WERTHEIN
/s/ Gerardo Werthein
|
||
Telecom Italia S.p.A.,
|
|||
By: | /s/ Andrea Balzarini | ||
Name: | Andrea Balzarini | ||
Title: | Authorized Representative |
Telecom Italia International N.V.,
|
|||
By: | /s/ Francesco S. Lobianco | ||
Name: | Francesco S. Lobianco | ||
Title: | Chief Executive Officer |
FINTECH INVESTMENTS LTD.
|
||||
By: | Diretora Corporate Services S.A., acting as director of FINTECH INVESTMENTSLTD. | |||
By: | /s/ André Spörri | |||
Name: |
André Spörri
|
|||
Title: |
Director / Secretary
|
|||
By: | /s/ Nathalie Sutter | |||
Name: |
Nathalie Sutter
|
|||
Title: |
Executive Vice President
|
TELECOM ITALIA S.p.A.
|
|||
By:
|
/s/ Andrea Balzarini | ||
Name: |
Andrea Balzarini
|
||
Title: |
Authorized Representative
|
TELECOM ITALIA INTERNATIONAL N.V.
|
|||
By:
|
/s/ Francesco S. Lobianco | ||
Name: |
Francesco S. Lobianco
|
||
Title: |
Chief Executive Officer
|
ACKNOWLEDGED
|
FINTECH TELECOM, LLC
|
|||
By:
|
Fintech Advisory, Inc. | ||
Its Managing Member
|
By:
|
/s/ Erika Mouynes | ||
Name: |
Erika Mouynes
|
||
Title: |
Authorized Person
|
By:
|
/s/ Julio Rafael Rodriguez, Jr. | ||
Name: |
Julio Rafael Rodriguez, Jr.
|
||
Title: |
Authorized Person
|
Telecom Italia S.p.A.
|
||
By:
|
/s/ Andrea Balzarini
|
|
|
Name:
|
Andrea Balzarini
|
|
Title:
|
Authorized Representative
|
Telecom Italia International N.V.
|
||
By:
|
/s/ Francesco S. Lobianco
|
|
|
Name:
|
Francesco S. Lobianco
|
|
Title:
|
Chief Executive Officer
|
W de Argentina – Inversiones S.L.
|
||
Gerardo Werthein
|
||
/s/ Gerardo Werthein
|
||
Los W Guarantor Company
|
||
Gerardo Werthein
|
||
/s/ Gerardo Werthein
|
||
Los W Controlling Shareholders
|
||
Dario Werthein
|
Daniel Werthein
|
|
/s/ Dario Werthein
|
/s/ Daniel Werthein
|
|
Adrian Werthein
|
Gerardo Werthein
|
|
/s/ Adrian Werthein
|
/s/ Gerardo Werthein
|
FINTECH TELECOM, LLC
|
||||
By: Fintech Advisory, Inc.
Its Managing Member
|
||||
By:
|
/s/ Erika Mouynes
|
|||
Name: |
Erika Mouynes
|
|||
Title: |
Authorized Person
|
|||
By:
|
/s/ Julio Rafael Rodriguez, Jr.
|
|||
Name: |
Julio Rafael Rodriguez, Jr.
|
|||
Title: |
Authorized Person
|
|||
ARTICLE 1
|
||
DEFINITIONS AND INTERPRETATION
|
2 | |
Section 1.01.
|
Definitions
|
2
|
Section 1.02.
|
Interpretation
|
14
|
ARTICLE 2
|
||
PURCHASE AND SALE OF THE TAR-OWNED SHARES
|
15 | |
Section 2.01.
|
Purchase and Sale of the TAR-Owned Shares.
|
15
|
Section 2.02.
|
TAR Representations and Warranties
|
16
|
Section 2.03.
|
TAR Transfer Date
|
17
|
ARTICLE 3
|
||
PURCHASE AND SALE OF THE SOFORA SHARES
|
17 | |
Section 3.01.
|
Purchase and Sale of the Majority Sofora Shares
|
17
|
Section 3.02.
|
Purchase Price for the Majority Sofora Shares
|
17
|
Section 3.03.
|
Closing
|
17
|
Section 3.04.
|
Purchase and Sale of the Minority Sofora Shares
|
20
|
ARTICLE 4
|
||
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
|
22 | |
Section 4.01.
|
Duly Issued; No Preemptive Rights
|
22
|
Section 4.02.
|
Title to Sofora Shares
|
23
|
Section 4.03.
|
Organization; Authority and Qualification
|
23
|
Section 4.04.
|
Binding Agreement
|
23
|
Section 4.05.
|
No Conflict or Default
|
23
|
Section 4.06.
|
Capitalization; Ownership of the TEO Companies
|
24
|
Section 4.07.
|
Sofora.
|
24
|
Section 4.08.
|
No Claims Against the Republic of Argentina
|
25
|
Section 4.09.
|
TEO and Nortel Disclosure; No Material Undisclosed Changes
|
25
|
Section 4.10.
|
Affiliate Transactions; No Seller Claims.
|
26
|
Section 4.11.
|
Patriot Act Compliance
|
26
|
ARTICLE 5
|
||
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
|
26 | |
Section 5.01.
|
Organization; Authority and Qualification
|
26
|
Section 5.02.
|
Binding Agreement
|
27
|
Section 5.03.
|
No Conflict or Default
|
27
|
Section 5.04.
|
Financing
|
28
|
Section 5.05.
|
Purchase for Investment
|
28
|
Section 5.06.
|
No Other Representations
|
28
|
Section 5.07.
|
Patriot Act Compliance
|
29
|
Section 5.08.
|
Affiliated Investors
|
29
|
ARTICLE 6
|
||
COVENANTS
|
29 | |
Section 6.01.
|
Further Action; Governmental Filings Until the Outside Date
|
29
|
Section 6.02.
|
Third Party Offers Prior to the Outside Date
|
31
|
Section 6.03.
|
Sofora Debt; Argentine Government Bonds
|
32
|
Section 6.04.
|
Assignable Dividends
|
32
|
Section 6.05.
|
Conduct of Business.
|
32
|
Section 6.06.
|
Resignations; Designation of Purchaser Representatives
|
36
|
Section 6.07.
|
Seller Release
|
36
|
Section 6.08.
|
Post-Closing Release by TEO Companies
|
36
|
Section 6.09.
|
Non-Competition; Non Solicitation
|
37
|
Section 6.10.
|
Post-Closing Matters
|
37
|
Section 6.11.
|
Director and Officer Liability
|
38
|
Section 6.12.
|
Subsequent Actions
|
40
|
Section 6.13.
|
Subsequent Transactions in Shares
|
40
|
Section 6.14.
|
Capital Gains Tax
|
42
|
Section 6.15.
|
Patriot Act Compliance
|
42
|
Section 6.16.
|
Confidentiality
|
42
|
Section 6.17.
|
Public Announcements
|
42
|
Section 6.18.
|
Ethical Business Practices
|
43
|
Section 6.19.
|
Mandatory Offer.
|
43
|
Section 6.20.
|
Antitrust Approval
|
44
|
Section 6.21.
|
Third Party Shareholder Claims
|
45
|
Section 6.22.
|
CEO Compensation
|
45
|
Section 6.23.
|
Minority Sofora Shares.
|
45
|
ARTICLE 7
|
||
CONDITIONS TO CONSUMMATION OF THE MINORITY SALE AND CONDITIONS TO CLOSING
|
46 | |
Section 7.01.
|
Conditions to Obligations of the Minority Sale
|
46
|
Section 7.02.
|
Conditions to Obligations of the Majority Sale
|
47
|
ARTICLE 8
|
||
TERMINATION
|
49 | |
Section 8.01.
|
Termination of Obligation to Effect the Closing
|
49
|
Section 8.02.
|
Termination
|
50
|
Section 8.03.
|
Seller Options Following Outside Date; Second Phase Actions
|
52
|
Section 8.04.
|
Unwind Option
|
52
|
Section 8.05.
|
Third Party Sale Option
|
53
|
Section 8.06.
|
Minority Call Option
|
56
|
ARTICLE 9
|
||
POST-CLOSING LIABILITY
|
57 | |
Section 9.01.
|
Survival
|
57
|
Section 9.02.
|
Indemnification.
|
57
|
Section 9.03.
|
Third Party Claim Procedures.
|
59
|
Section 9.04.
|
Direct Claim Procedures
|
59
|
Section 9.05.
|
Calculation of Losses.
|
60
|
Section 9.06.
|
Assignment of Claims
|
61
|
Section 9.07.
|
No Other Remedy
|
61
|
ARTICLE 10
|
||
MISCELLANEOUS
|
61 | |
Section 10.01.
|
Fees and Expenses
|
61
|
Section 10.02.
|
Amendment and Modification
|
62
|
Section 10.03.
|
Notices
|
62
|
Section 10.04.
|
Counterparts
|
63
|
Section 10.05.
|
Entire Agreement; No Third Party Beneficiaries
|
63
|
Section 10.06.
|
Severability
|
63
|
Section 10.07.
|
Governing Law
|
64
|
Section 10.08.
|
Arbitration
|
64
|
Section 10.09.
|
Extension; Waiver
|
65
|
Section 10.10.
|
Assignment
|
65
|
Section 10.11.
|
Headings
|
66
|
Section 10.12.
|
Equitable Relief
|
66
|
FINTECH TELECOM, LLC,
as Pledgor
|
||||
By: Fintech Advisory, Inc.
Its Managing Member
|
||||
By:
|
||||
Name: |
Erika Mouynes
|
|||
Title: |
Authorized Person
|
|||
By:
|
||||
Name: |
Julio Rafael Rodriguez, Jr.
|
|||
Title: |
Authorized Person
|
|||
[●],
as Appointed Call Purchaser
|
||||
By:
|
||||
Name: | ||||
Title: | ||||
October 24, 2014 |
TELECOM ITALIA S.P.A.
|
||||
By:
|
/s/ Andrea Balzarini
|
|||
Name: |
Andrea Balzarini
|
|||
Title: |
Authorized Representative
|
TELECOM ITALIA INTERNATIONAL N.V.
|
||||
By:
|
/s/ Francesco S. Lobianco
|
|||
Name: |
Francesco S. Lobianco
|
|||
Title: |
Chief Executive Officer
|
TIERRA ARGENTEA S.A.
|
||||
By:
|
/s/ Francesca Petralia
|
|||
Name: |
Francesca Petralia
|
|||
Title: |
Authorized Representative
|
Telecom Italia S.p.A.
Piazza degli Afari, 2
Milan
Italy
|
1.
|
We make reference to our memorandum of understanding dated November, 13, 2013 in respect of certain transition services to be made available (the “Original Transition Services MOU”) and the Amended and Restated Stock Purchase Agreement (as amended from time to time by the parties thereto, the “SPA”) dated October 24, 2014, among Fintech Telecom, LLC (“Purchaser” or “we”) and Telecom Italia S.p.A. (“TI”) and Telecom Italia International N.V. (“TII” and together with TI, the “Sellers”), pursuant to which the Sellers shall sell to Purchaser or a Substitute Purchaser their Majority Sofora Shares at the Closing (the “Transaction”). The Sellers’ agreement to enter into the SPA with the Purchaser is conditioned upon and in consideration of, among other things, this Offer becoming and remaining effective in accordance with its terms. It is acknowledged that this Offer, once accepted, is one of the agreements of the Sellers required to be in full force and effect as of (i) the Interim Transfer Date as a condition to the consummation of the Minority Sale pursuant to Section 7.01(a)(iv)(ii) of the SPA and (ii) the Closing Date as a condition to the consummation of the Majority Sale pursuant to Section 7.02(a)(iv)(ii) of the SPA. All capitalized terms used herein that are not defined herein have the meaning set forth in the SPA.
|
2.
|
Whereas TI, together with its Affiliates (the “TI Companies”), has over several years consistently acted as the industrial partner of Telecom Argentina S.A. (“TEO”), including but not limited to, by providing distinctive skills, leading know-how, state-of-the-art competences and technological excellence. In connection with the Transaction, Purchaser has determined that it is in its own interest as an indirect investor in TEO and in the strategic interest of TEO and the TEO Companies that TI and the TI Companies continue their support described above and, in addition and in connection with this indirect change in shareholdings, that TEO and the TEO Companies have the right to review certain arrangements with TI and the TI Companies and to negotiate for TI and the TI Companies to provide certain post-Closing services.
|
3.
|
Accordingly, the Original Transition Services MOU is hereby amended and restated in its entirety and, subject to the terms and conditions of this offer (the “Offer”) and in consideration for the payments described in paragraph 3(d) herein, TI hereby, subject to and conditioned upon the Closing, agrees to:
|
|
(a)
|
grant to each of the TEO Companies the right, for a period of one-hundred-twenty (120) Business Days following the Closing Date, to enter into a review with TI and the TI Companies of certain existing contracts listed on Schedule 3(a), as updated by TI prior to the Closing, between the Purchaser and TI (the “Affiliate Contracts”), and in connection with each such Affiliate Contract the relevant TEO Companies shall have the right:
|
|
i.
|
to elect to terminate any Affiliate Contract listed in Schedule 3(a)(i), as updated by TI prior to the Closing, without penalty or premium;
|
|
ii.
|
to elect to extend any such Affiliate Contract that would otherwise terminate by its terms during the period ending three (3) years from the Closing Date (the “Transition Period”), for an additional period to be mutually agreed to the satisfaction of the relevant TEO Company and TI and/or the relevant TI Company;
|
|
(b)
|
grant to TEO the right to request the secondment during the Transition Period of certain employees of TI and its Affiliates (including certain key employees) listed on Schedule 3(b), as updated by TI prior to the Closing, solely for purposes of assisting and advising the management of TEO and the TEO Companies, and permit such secondment of such employees during any portion of or all of the Transition Period, subject to agreement on terms and conditions satisfactory to each of TI or the relevant TI Companies and the relevant TEO Company, including as to the amount and form of reimbursement to TI or relevant TI Companies therefor; and
|
|
(c)
|
undertake to organize and keep available resources to provide to TEO and/or the TEO Companies the services described on Schedule 3(c), as updated by TI prior to the Closing, hereto (the “Transition Services Availability Obligations”), the scope and terms of which services would be determined pursuant to negotiations to be carried out promptly following the Closing and documented in one or more agreements (each, a “Transition Services Agreement”) between TI and certain TI Companies on the one hand and certain of TEO and the TEO Companies on the other hand. Such agreement would set out terms for the provision by TI and TI Companies of such services, on a transitional basis for not longer than the Transition Period, on terms and conditions (including as to payment) to be reflective of an arms’-length negotiation and otherwise on terms satisfactory to each of TI or the relevant TI Affiliate and the relevant TEO Company.
|
|
(d)
|
As a consideration for such organization and availability of resources for their potential purchase by TEO and/or the TEO Companies and for the other rights described above and irrespective of any payments or considerations paid or payable under any of the arrangements referred to in section 3(a), (b) or (c), Purchaser shall pay to Sellers US$30,000,000 (the “Transition Services Availability Payment”), on the date that is 3 months following the Closing Date; provided that (x) the rights provided for herein and the corresponding Transition Services Availability Payment obligations may be assigned to TEO and/or any of the TEO Companies as an additional obligation (in addition to the obligations thereunder for the payment of the services) under the Transition
|
4.
|
The parties hereto agree that for purposes of section 3(d) herein the Transition Services Availability Payments shall be calculated and paid, without any right to set off by TEO and the TEO Companies or by TI or the relevant TI Companies, disregarding any other payment due to or from and/or made to or from TEO and/or the TEO Companies (including without limitation any payments due and/or made under any Affiliate Contract or any termination fee paid or payable thereunder, any reimbursement relating to any Person seconded and any amounts payable and/or paid pursuant to the Transition Services Agreement). The parties hereto further agree that all Transition Services Availability Payments, including but not limited to any such payment made by TEO and/or TEO Companies, shall be made in immediately available funds in US Dollars to an account or accounts designated by TI outside of Argentina.
|
5.
|
Notwithstanding anything to the contrary, Purchaser shall indemnify without limitation and hold Sellers fully harmless against any claims by any third party (including, for the avoidance of doubt, any of TEO and/or the TEO Companies) with respect to this Offer or any payments made by any Person contemplated hereby.
|
6.
|
For the avoidance of doubt, following acceptance of this Offer the occurrence of the Closing is the only condition to the Purchaser’s obligation to pay or cause to be paid pursuant to section 3(d) above, the Transition Services Availability Payment at such times and in such manner and amounts as set forth herein.
|
7.
|
This Offer shall become effective upon acceptance by TI by delivering to the Purchaser a letter in the form attached as Exhibit A (the “Acceptance Letter”) accepting this Offer in its entirety and expressly referencing “Binding Offer # TEO –1024/2014”. Upon delivery of such Acceptance Letter, TI will be deemed to have accepted the Offer and the parties will be deemed to have agreed to undertake as of and conditional upon Closing, all of the terms and conditions set forth in this Letter and this Letter shall become a binding agreement between TI and the Purchaser.
|
8.
|
The obligation of the Purchaser and if applicable TEO and/or the TEO Companies to pay the Transition Services Availability Payment pursuant to paragraphs 3 and 4 herein is in exchange for the rights described in section 3(a), (b) and (c), including the organization and availability of the Transition Services, is unconditional and, without limiting the generality of the foregoing, not dependent on or affected by: (a) whether any Affiliate Contracts are actually terminated or extended or the number of Affiliate Contracts actually terminated or extended, (b) whether any secondments are arranged or the number of secondments made or the performance of the secondees, or in each case whether any such terminations, extensions or secondments occur, (c) the failure of the
|
9.
|
Section 4.03 (Organization; Authority and Qualification), Section 4.05 (Binding Agreement), Section 4.05 (No Conflict or Default), Section 4.11 (Patriot Act Compliance), Section 5.01 (Organization; Authority and Qualification), Section 5.02 (Binding Agreement), Section 5.03 (No Conflict or Default), and Section 5.07 (Patriot Act Compliance) of the SPA are hereby incorporated into this Offer by reference on a mutatis mutandis basis, provided that for purposes of interpreting such Sections as incorporated herein, the word “Agreement” in such Sections shall be deemed to refer to this Offer, and the Purchaser represents and warrants to TI that the statements contained therein and incorporated herein are true and correct as of the date hereof and as of each date on which any payment hereunder may be due. In addition the Purchaser hereby represents and warrants to TI as of the date hereof and as of each date on which payment hereunder may be due:
|
|
(a)
|
The Purchaser will at all times on or immediately prior to the payment in full of the Transition Services Availability Payment have sufficient cash on hand or other sources of funds immediately available without conditions, to enable the Purchaser to pay the Transition Services Availability Payment in full in immediately available funds in US Dollars outside of Argentina on each date on which such payment is due in accordance herewith. No additional financing is required by the Purchaser in connection with the Offer and the consummation of any of the Purchaser’s obligations with respect thereto.
|
|
(b)
|
The Purchaser is an informed and sophisticated party and in making this Offer is not relying on any representations or warranties of the Sellers, and the Sellers have given no representations or warranties in connection herewith.
|
10.
|
Each of TI and the Purchaser and, if applicable, TEO and the TEO Companies, shall bear its own costs and expenses and applicable taxes and the costs and expenses of their legal counsel and other advisors related to the negotiation, preparation of documentation and implementation of any aspect related to this Offer.
|
11.
|
This Offer shall terminate if the Offer is not accepted by Sellers on or prior to the date that is two (2) Business Days from the date of execution of the SPA. The Offer contained in this Offer shall be irrevocable and binding on the Purchaser until its termination in accordance with this paragraph 11. This Offer, the SPA and the documents referenced herein and therein (a) constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof and (b) is not intended to confer any rights or remedies upon any person other than the parties hereto.
|
12.
|
This Offer, the legal relations between the parties and any active or pending action, complaint, petition, investigation, suit, litigation or other proceeding, whether civil, administrative or criminal, in law or in equity, or before any arbitrator or public
|
13.
|
Any dispute, claim or controversy arising from, relating to, or in connection with this Offer, including without limitation any question regarding its existence, validity, termination, or the performance or breach thereof, shall be referred to and finally resolved and settled by arbitration administered by International Chamber of Commerce International Court of Arbitration (the “ICC”), in accordance with ICC Rules of Arbitration in effect at the time of the arbitration, which rules are deemed to be incorporated by reference into this clause except as they may be modified herein or by agreement of the parties. Each party hereby irrevocably waives its right to commence any proceedings in any court with respect to any matter subject to arbitration under this Offer. The arbitral tribunal shall consist of three arbitrators. Each party shall nominate one arbitrator: the party requesting arbitration concurrently with such request and the other party within fifteen (15) calendar days from receipt of the request for arbitration. In the event a party fails to nominate an arbitrator or deliver notification of such nomination to the other party and to the ICC within this time period, upon request of either party, such arbitrator shall instead be appointed by the ICC within fifteen (15) calendar days receiving such request in accordance with the Rules of Arbitration. The two arbitrators appointed in accordance with the above provisions shall nominate the third arbitrator and notify the parties and the ICC in writing of such nomination within fifteen (15) calendar days of their appointment. If the first two appointed arbitrators fail to nominate a third arbitrator or notify the parties and the ICC of that nomination within this time period, then, upon request of either Party, the third arbitrator shall be appointed by the ICC within fifteen (15) calendar days of receiving such request in accordance with the Rules of Arbitration. The third arbitrator shall serve as Chairman of the arbitral tribunal. The place of arbitration shall be Paris, France. The language of the arbitration shall be English. No arbitrator shall be an employee, officer or director of either party or of their respective affiliates, nor shall any Arbitrator have any interest that would be affected in any material respect by the outcome of the dispute. The decision of a majority of the arbitrators shall be final and binding on the parties and their respective successors and assigns and the parties waive any form of challenge against it. The arbitral tribunal shall determine the proportions in which the parties shall pay the fees and expenses of the arbitral tribunal. The arbitral tribunal shall not have the authority to award punitive damages. The parties hereby agree that the arbitral tribunal shall have the power to award equitable remedies (including specific performance). The parties agree that either party may seek conservatory or similar emergency interim relief in aid of arbitration, including but not limited to a temporary restraining order or preliminary injunction or attachment in aid of the arbitration and may do so in any court of competent jurisdiction located in the State of New York at any time prior to the constitution of the panel and the parties hereby consent to the jurisdiction of any such court. If such emergency or interim relief is sought after the constitution of the arbitration panel, such relief may be sought only before the arbitral tribunal and, after the constitution of the arbitration panel, each party waives any rights they might possess
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14.
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Any term or provision of this Offer that is held by an arbitral panel or court to be invalid, void or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final ruling of the arbitral panel declares that any term or provision hereof is invalid, void or unenforceable, the parties agree that the panel making such determination shall have the power to reduce the scope, duration, area or applicability of the term or provision, to delete specific words or phrases, or to replace any invalid, void or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision.
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15.
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Neither this Offer nor any of the rights, interests or obligations hereunder shall be assigned by the Purchaser or any Seller (whether by operation of law or otherwise) without the prior written consent of the other parties; provided that the Purchaser shall have the right to assign its rights and interests under this Offer to a Substitute Purchaser and upon such assignment the obligations of the Purchaser hereunder may be satisfied by the Substitute Purchaser, but that no such assignment shall relieve the Purchaser of its obligations hereunder and an assignment to any Substitute Purchaser shall not otherwise affect the rights and obligations of any party to this Offer.
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16.
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It is hereby agreed and acknowledged by the parties that money damages may be an inadequate remedy for a failure to comply with any of the obligations imposed by this Offer and that, in the event of any such failure, an aggrieved party shall, therefore, be entitled (in addition to any other remedy to which such party may be entitled at law or in equity) to injunctive relief, including specific performance, to enforce such obligations, without the posting of any bond, and if any action should be brought in equity to enforce any of the provisions of this Offer, none of the parties shall raise the defense that there is an adequate remedy at Law.
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17.
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This Offer shall be subject to the provisions of Article 10 of the SPA, which is incorporated in this Offer by reference on a mutatis mutandis basis. For purposes of interpreting such Article as incorporated herein, the words “this Agreement” in such Article shall be deemed to refer to this Offer.
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By: | /s/ Erika Mouynes | |
Name: | Erika Mouynes | |
Title: | Authorized Person |
By: | /s/ Julio Rafael Rodriguez, Jr. | |
Name: | Julio Rafael Rodriguez, Jr. | |
Title: | Authorized Person |
October 24, 2014
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Telecom Italia S.p.A.,
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By: | /s/ Andrea Balzarini | ||
Name: | Andrea Balzarini | ||
Title: | Authorized Representative |
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(i)
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to acquire the direct or indirect equity interests of TEO and related rights held by the Sellers, the Purchaser or any Substitute Purchaser (with or without preference over the Purchaser, the Substitute Purchaser, the Sellers, the Appointed Call Purchaser or any Adequate Purchaser);
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(ii)
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to sell any portion of its own direct or indirect equity interests in TEO to the Purchaser, the Substitute Purchaser, the Appointed Call Purchaser or any Adequate Purchaser (concurrently with, with or without preference over, or on the same terms as, the Sellers or the Purchaser); or
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(iii)
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to block, to oppose or to impose conditions on the creation or transfer of any lien on or encumbrance over all or part of the direct or indirect equity interests of TEO and related rights held by the Sellers, the Purchaser or any Substitute Purchaser, or the registration or recordation thereof, either contractually, judicially or through administrative proceedings.
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W DE ARGENTINA – INVERSIONES S.A.
/s/ Gerardo Werthein
By: Gerardo Werthein
Title: Chairman
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LOS W S.A.
/s/ Daniel Werthein
By: Daniel Werthein
Title: Chairman
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DARIO WERTHEIN
/s/ Dario Werthein
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DANIEL WERTHEIN
/s/ Daniel Werthein
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ADRIAN WERTHEIN
/s/ Adrian Werthein
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GERARDO WERTHEIN
/s/ Gerardo Werthein
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TELECOM ITALIA S.p.A
/s/ Andrea Balzarini
By: Andrea Balzarini
Title: Authorized Representative
Date: October 24, 2014
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TELECOM ITALIA INTERNATIONAL N.V.
/s/ Francesco S. Lobianco
By: Francesco S. Lobianco
Title: Chief Executive Officer
Date: October 24, 2014
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“Adequate Purchaser”
“Appointed Call Purchaser”
“Call Option Closing”
“Closing”
“Closing Date”
“Decision Date”
“Final Date”
“Final Unwind”
“Final Unwind Date”
“Governmental Authority”
“Interim Transfer Date”
“Law”
“Majority Sale”
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“Majority Sofora Shares”
“Minority Call Option”
“Minority Sale”
“Minority Sofora Pledge”
“Minority Sofora Shares”
“Outside Date”
“Regulatory Approval”
“Sofora Shares”
“Substitute Purchaser”
“Third Party Closing”
“Third Party Closing Date”
“Third Party Sale”
“Unwind Option”
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Dario Werthein
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Daniel Werthein
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/s/ Dario Werthein
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/s/ Daniel Werthein
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Adrian Werthein
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Gerardo Werthein
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/s/ Adrian Werthein
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/s/ Gerardo Werthein
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TELECOM ITALIA INTERNATIONAL N.V.
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By:
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/s/ Francesco S. Lobianco
Name: Francesco S. Lobianco
Title: Chief Executive Officer
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Exhibit 12
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT (as the same may be amended, modified or supplemented from time to time hereto, this “Agreement”) dated October 29, 2014 by and among Fintech Telecom, LLC, a limited liability company duly organized and existing under the laws of Delaware (the “Pledgor”), and Telecom Italia S.p.A., a company duly organized and existing under the laws of Italy with its registered office at Piazza degli Affari, 2, Milan, Italy (“TI”) and Telecom Italia International N.V., a company duly organized and existing under the laws of The Netherlands with its registered office at Strawinskylaan 1627, 1077XX Amsterdam (“TII” and together with TI, the “Sellers”). Capitalized terms used and not otherwise defined herein shall have the meaning set forth in the SPA (as defined below).
WHEREAS, Pledgor, as purchaser (in such capacity and together with its successors and permitted assigns, including any Substitute Purchaser designated in accordance with the SPA, the “Purchaser”) and the Sellers are parties to an Amended and Restated Stock Purchase Agreement dated as of October 24, 2014 (the “Amendment Date”) (as amended from time to time by the parties thereto, the “SPA”), pursuant to which the Purchaser has undertaken certain payment obligations;
WHEREAS, as an inducement and condition to the entrance of the Sellers into the SPA, (1) the Purchaser and the Sellers are parties to an amended memorandum of understanding dated as of the Amendment Date in respect of certain transition services to be made available by the Sellers (as amended from time to time by the parties thereto, the “Transition Services MOU”) and (2) the Los W Parties and the Sellers are parties to an amended memorandum of understanding dated as of or prior to the Amendment Date in respect of the waiver and amendment of drag-along rights under the Shareholders Agreement in connection with the Sales (as amended from time to time by the parties thereto, the “Drag Waiver MOU”);
WHEREAS, as an inducement and condition to the entrance of the Sellers into the SPA, Fintech Investments Ltd. (the “Guarantor”) and the Sellers are parties to an amended Guaranty dated as of Amendment Date (as amended from time to time by the parties thereto, the “Guaranty”) pursuant to which, among other things, the Guarantor absolutely, unconditionally, and irrevocably guarantees to the Sellers the performance of the obligations of the Purchaser and the Los W Parties under the foregoing documents, including prompt payment when due of the Secured Obligations (as hereinafter defined);
WHEREAS, the Pledgor has agreed to execute and deliver to the Sellers this Agreement pursuant to which the Pledgor grants a security interest in the Collateral (as hereinafter defined) as security for the Secured Obligations (as hereinafter defined), on the terms provided herein; and
NOW, THEREFORE, in consideration of the mutual promises, covenants, representations and warranties set forth herein and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:
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Section 1. Definitions, Etc.
1.01 Certain Uniform Commercial Code Terms. As used herein, the terms “General Intangible”, “Investment Property” and “Proceeds” have the respective meanings set forth in Article 9 of the NYUCC.
1.02 Additional Definitions. In addition, as used herein:
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Business Day(s)” means any day other than Saturday or Sunday or any day on which banking institutions in the City of New York, USA or Rome, Italy or Amsterdam, The Netherlands are authorized or required by Law, regulation or executive order, to remain closed.
“Collateral” has the meaning assigned to such term in Section 3.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Event of Default” means a breach by the Purchaser, Pledgor or Guarantor of its obligation to pay any Payment Amount to the Sellers in accordance with the terms of, and subject to the conditions set forth in, the Guaranty, the SPA, the Transition Services MOU, the Drag Waiver MOU and this Agreement, in each case only to the extent that at such time the breach has not been remedied by the cancellation of a principal amount of the Pledged Note equal to the Payment Amount.
“Final Unwind Obligation” means the obligation of the Purchaser to pay the Final Unwind Liquidation Amount in accordance with [Section 8.05(f) of] the SPA (and any obligation of the Guarantor in respect thereof).
“Floor Price Obligation” means the obligation of the Purchaser to pay the Sellers any amounts due upon consummation of a Third Party Sale pursuant to and in accordance with Section 8.05(e) of the SPA (and any obligation of the Guarantor in respect thereof).
“Indemnification Obligation” means the obligation of the Purchaser to make payment to the Sellers of any amounts due and owing to the Sellers pursuant to Section 6.21 or Section 9.02 of the SPA (and any obligation of the Guarantor in respect thereof) and the obligations of the Purchaser to make payment to the Sellers of any amounts due and owing to the Sellers pursuant to Paragraph 5 of the Transition Services MOU (and any obligation of the Guarantor in respect thereof), in each case solely to the extent that a final, non-appealable decision or judgment of an arbitral panel or other Governmental Entity (or any appealable decision if such decision is not appealed within 90 days) determines, or it is expressly agreed in writing by the parties hereto, that such amount is
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due and owing from the Purchaser to the Sellers or their Affiliates thereunder (and in respect of which decision, agreement or judgment the Purchaser and the Guarantor have failed to make payment within three (3) Business Days).
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien (statutory or other), pledge, hypothecation, encumbrance, charge, deposit arrangement, preference, priority or security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing) in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“NYUCC” means the Uniform Commercial Code as in effect from time to time in the State of New York.
“Payment Amount” means each of (a) the Purchase Price Obligation, (b) the Waiver Fee Obligation, (c) the Transition Payment Amount Obligation, (d) the Indemnification Obligation, (e) the Floor Price Obligation and (f) the Final Unwind Obligation, together with any reasonable and documented costs and expenses incurred by the Sellers in the enforcement of this Agreement.
“Pledged Note” means the Note issued to the Pledgor by TII on the date hereof and in an initial total principal amount of US$600,593,478.
“Purchase Price Obligation” means the obligation of the Purchaser to make payment to the Sellers in US Dollars outside of Argentina of the Sofora Purchase Price, plus an amount equal to the lesser of (x) the amount set forth in the Sofora Debt Certificate and (y) the Sofora Debt Amount, or any portion thereof, in each case due and owing to the Sellers at the Closing, in accordance with the SPA (and any obligation of the Guarantor in respect thereof).
“Secured Parties” means, collectively, the Sellers and their respective permitted successors and assigns.
“Secured Obligations” means, collectively, the Purchase Price Obligation, the Waiver Fee Obligation, the Transition Payment Amount Obligation, the Indemnification Obligation, the Floor Price Obligation and the Final Unwind Obligation.
“Transition Payment Amount Obligation” means the obligation of the Purchaser to make payment to the Sellers of the Transition Services Availability Payment (as such term is defined in the Transition Services MOU) in US Dollars outside of Argentina (and any obligation of the Guarantor in respect of any portion thereof due and owing to the Sellers in the event that the Purchaser fails to pay to the Sellers), on the date on which it is required to be paid, in accordance with the terms of the Transition Services
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MOU, an amount equal to the Transition Services Availability Payment (if any) in US Dollars outside of Argentina.
“Waiver Fee Obligation” means the obligation of the Guarantor under the Guaranty to make payment to the Sellers of the Waiver and Amendment Fee (as defined in the Drag Waiver MOU) or any portion thereof due and owing to the Sellers in the event that the Los W Parties fail to pay to the Sellers at the Closing in accordance with the terms of the Drag Waiver MOU, an amount equal to the Fee (as defined in the Drag Waiver MOU) in US Dollars outside of Argentina.
Section 2. Representations and Warranties. On the date hereof, the Pledgor represents and warrants to the Sellers for the benefit of the Secured Parties that:
2.01 Title. The Pledgor is the sole beneficial and legal owner of the Collateral in which it purports to grant a security interest pursuant to Section 3, and no Lien exists upon the Collateral (and no right or option to acquire the same exists in favor of any other Person) other than the security interest created or provided for herein, which security interest constitutes a valid first and prior perfected Lien on the Collateral.
2.02 Names, Etc. The full and correct legal name of the Pledgor is Fintech Telecom, LLC, the Pledgor’s jurisdiction of organization is Delaware, its chief executive office is in the United States, its mailing address is correctly set out in Section 5.01, and there is no financing statement naming the Pledgor as debtor currently on file. The Pledgor will provide the Sellers with at least thirty (30) days’ prior written notice of any change in the Pledgor’s name or form or jurisdiction of organization. The Pledgor is validly existing and in good standing under the laws of Delaware and has all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder. The Pledgor is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the properties owned or leased by it or the operation of its business makes such licensing or qualification necessary, except to the extent that the failure to be so licensed or qualified or in good standing would not, individually or in the aggregate, have a material adverse effect on the Pledgor’s ability to perform their obligations under this Agreement. The execution and delivery of this Agreement by the Pledgor and the performance by the Pledgor of its obligations hereunder have been duly authorized by all requisite action on the part of the Pledgor and its stockholders or members, as applicable.
2.03 Changes in Circumstances. The Pledgor has not (a) within the period of four (4) months prior to the date hereof, changed its location (as defined in Section 9-307 of the NYUCC), or (b) heretofore changed its name, or (c) heretofore become a “new debtor” (as defined in Section 9-102(a)(56) of the NYUCC) with respect to a currently effective security agreement previously entered into by any other Person.
2.04 Pledged Note. The Pledged Note owned by the Pledgor is not and will not be subject to any contractual restriction upon the transfer of such Pledged Note (except for any such restriction contained herein and in the documentation of, and purchase agreement for, the Notes constituting the Pledged Note). The Pledgor has the right and requisite authority to pledge, assign, transfer, deliver, deposit and set over the Pledged Note pledged by the Pledgor to the Sellers for the benefit of the Secured Parties as provided herein.
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2.05 Binding Agreement. This Agreement has been duly executed and delivered by the Pledgor, and, assuming due and valid authorization, execution and delivery by the Sellers, this Agreement constitutes a legal, valid and binding obligation of the Pledgor, enforceable against the Pledgor in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar Laws of general application affecting enforcement of creditors’ rights generally and (b) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought.
2.06 No Conflict or Default. The execution, delivery and performance by the Pledgor of this Agreement does not and will not: (a) violate, conflict with or result in any breach of any provision of the certificate of incorporation or bylaws (or similar organizational documents) of the Pledgor, (b) require the Pledgor to make any filing with, obtain any permit, authorization, consent or approval from, or provide any notification to, any Governmental Entity, (c) result in a violation or breach of, or, with or without due notice or lapse of time or both, constitute a default or give rise to any right of termination, cancellation or acceleration under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which the Pledgor is a party or by which the Pledgor’s shares or properties or assets may be bound, (d) violate any Law or Governmental Order applicable to the Pledgor, or (e) require any registration, recordation or filing with any governmental body, agency or official to be valid and enforceable or for the perfection or due recordation of the security interest in the Collateral granted hereunder or for the enforcement of the security interest in the Collateral granted hereunder.
2.07 Patriot Act Compliance. None of the assets of the Pledgor or any Affiliate of the Pledgor has been reported as blocked assets to the OFAC, pursuant to the OFAC reporting requirements (31 C.F.R. Section 501.603). None of the Pledgor nor any Affiliates of the Pledgor is an OFAC Listed Person or is a department, agency or instrumentality of, or is otherwise controlled by or acting on or behalf of, directly or indirectly, a Blocked Person. None of the Collateral constitutes or will constitute funds obtained from or on behalf of any OFAC Listed Person or any Blocked Person and neither the Pledgor nor any Affiliate of such person has entered into any agreement or understanding in respect of the Collateral with any OFAC Listed Person or any Blocked Person.
2.08 Notices. The Pledgor will, within two (2) Business Days, promptly give to the Sellers copies of any notices and other communications received by it with respect to the Pledged Note.
Section 3. Collateral.
3.01 Delivery of Pledged Note. The Pledgor undertakes and agrees to cause any certificates, instruments or agreements evidencing the Pledged Note to be delivered to the Sellers and for the pledge of the Pledged Note to be noted on the Pledgor’s register for the Pledged Note.
3.02. Collateral. This Agreement secures, and is security for, the Secured Obligations. As collateral security for the prompt payment in full when due of the Secured Obligations, the Pledgor hereby pledges to the Sellers, and grants to the Sellers for the benefit of the Secured
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Parties as hereinafter provided, a first priority security interest in all of the Pledgor’s right, title and interest in, to and under the following property, in each case whether tangible or intangible, wherever located, and whether now owned by the Pledgor or hereafter acquired and whether now existing or hereafter coming into existence (all of the property described in this Section 3 being collectively referred to herein as “Collateral”):
(a) the Pledged Note and any certificates, instruments or agreements evidencing such Pledged Note;
(b) any additional collateral pledged by the Pledgor hereunder in accordance with its obligation to provided Additional Collateral on the Decision Date in accordance with [Section 8.05(a)] of the SPA; and
(c) all Proceeds of any of the Collateral, and substitutions and replacements for, any of the Collateral, including any profits of any of the Collateral, but excluding any interest payments in respect of the Collateral.
Section 4. Further Assurances; Remedies. In furtherance of the grant of the security interest pursuant to Section 3, the Pledgor agrees with the Sellers for the benefit of the Secured Parties as follows:
4.01 Delivery and Other Perfection. The Pledgor shall promptly from time to time give, execute, deliver, file, record, authorize or obtain all such financing statements, continuation statements, notices, instruments, documents, agreements or consents or other papers and do such other acts and things as may be required by applicable Law or reasonably required by the Sellers to create, preserve, perfect, maintain the perfection of or validate the security interest granted pursuant hereto, at the Pledgor’s expense, to enable the Sellers to exercise and enforce their rights hereunder with respect to such security interest or to otherwise fully effect the purposes of this Agreement, and without limiting the foregoing, shall:
(a) if any certificates, instruments or agreements evidencing the Pledged Note constituting part of the Collateral or evidencing a change in the principal amount or the terms thereof of the are received by the Pledgor or the Guarantor, forthwith deliver to the Secured Parties such certificates or instruments representing or evidencing the same accompanied by such instruments of assignment and transfer in such form and substance as the Sellers may reasonably request or deem necessary, all of which thereafter shall be held by the Secured Parties as part of the Collateral;
(b) keep full and accurate books and records relating to the Collateral, and stamp or otherwise mark such books and records in such manner as the Sellers may reasonably require in order to reflect the security interests granted by this Agreement.
4.02 Other Financing Statements or Control. The Pledgor shall not file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to any of the Collateral in which the Sellers are not named as the sole secured party for the benefit of the Secured Parties.
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4.03 Preservation of Rights. The Sellers shall not be required to take steps necessary to preserve any rights against prior parties to any of the Collateral and shall not be required to file financing statements or secure the Collateral.
4.04 Rights of the Pledgor. For so long as the Sellers have not demanded payment against the Pledgor in respect of the Secured Obligations, the Pledgor shall be entitled to receive, retain or dispose of the interest paid in respect of the Pledged Note and shall have the right to exercise any consent rights of the promisee in respect of the Pledged Note.
4.05 Release of Collateral to the Pledgor. The security interest in respect of the Collateral shall be released in the following manner and to the following extent:
(a) After the Interim Transfer Date and prior to the earlier of the Closing and the Final Date, upon the date on which any Non-Permitted Dividend Amount is Payable (if not previously Paid) or Paid (if not previously Payable or Paid in any other currency), the pledge on and security interest in a principal amount of the Pledged Note equal to such Non-Permitted Dividend Amount shall be released and thereafter that portion of the principal amount of the Pledged Note shall be prepaid to the Pledgor in accordance with the terms of the Pledged Note;
(b) Upon a termination of the SPA prior to the Closing and prior to the Outside Date in accordance with Section 8.02 of the SPA (provided that at such time the Minority Sofora Pledge is in full force and effect) the pledge on and security interest in the Collateral shall be released and thereafter the Pledged Note shall be prepaid to the Pledgor in accordance with the terms of the Pledged Note.
(c) In the event of the sale to the Purchaser of the Majority Sofora Shares on or prior to the Outside Date:
(i) upon fulfillment of both the Purchase Price Obligation and the Waiver Fee Obligation, the pledge on and security interest in the Collateral shall be released except in respect of a principal amount of the Pledged Note of $30,000,000, and thereafter, except for such amount, the Pledged Note shall be prepaid to the Pledgor in accordance with the terms of the Pledged Note;
(ii) upon the date that the Transition Payment Amount Obligation has been fulfilled, the pledge on and security interest in the remaining Collateral shall be released except in respect of a principal amount of the Pledged Note of $8,000,000, and thereafter, except for such amount, the Pledged Note shall be prepaid to the Pledgor in accordance with the terms of the Pledged Note; and
(iii) upon the later of (i) the date that is three (3) months following the date on which the Transition Payment Amount Obligation is satisfied in full (the “Transition Payment Date”) and (ii) the date on which all disputes outstanding on the Transition Payment Date relating to any Indemnification Obligations have been fully and finally resolved and all payments due in respect of such Indemnification Obligations have been paid, the pledge on and security interest in the remaining Collateral shall be released, and thereafter the Pledged Note shall be prepaid to the Pledgor in accordance with the terms of the Pledged Note.
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(d) In the event of an exercise of the Unwind Option, then on the Decision Date, if the Minority Sofora Pledge is in full force and effect, the pledge on and security interest in the Collateral shall be released and thereafter the Pledged Note shall be prepaid to the Pledgor in accordance with the terms of the Pledged Note.
(e) In the event that the Third Party Sale Option is exercised and the Additional Collateral is deposited in accordance with the SPA, then:
(i) If a Third Party Sale is consummated on or prior to the Final Date, upon satisfaction of the Floor Price Obligation, if any, the pledge on and security interest in the Collateral shall be released and thereafter the Pledged Note shall be prepaid to the Pledgor in accordance with the terms of the Pledged Note;
(ii) If no Third Party Sale is consummated on or prior to the Final Date, then upon fulfillment of the Final Unwind Obligation, if the Minority Sofora Pledge is in full force and effect, the pledge on and security interest in the remainder of the Collateral shall be released and thereafter the Pledged Note shall be prepaid to the Pledgor in accordance with the terms of the Pledged Note.
(f) Upon the occurrence of a Payment Default under and as defined in the Pledged Note, the pledge on and security interest in the Collateral shall be released.
Following release of the pledge on and security interest in any Collateral in accordance with this Section 4.05, the Sellers, upon receipt of written request therefor, shall forthwith and at the expense of the Pledgor cause to be transferred and delivered to the Pledgor, against receipt but without any recourse, warranty or representation whatsoever, any such Collateral so released that is in the possession of the Sellers.
4.06 No Transfers or Non-Permitted Release. The Pledgor shall not be permitted to sell, assign, transfer or otherwise dispose of any Collateral except in accordance with Section 4.07 below.
4.07 Remedies.
(a) Rights and Remedies Generally upon Event of Default. Upon the occurrence of an Event of Default, the Sellers shall have all of the rights and remedies with respect to the Collateral of a secured party under the NYUCC (whether or not the NYUCC is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including the right, to the fullest extent permitted by law, to exercise all powers of ownership pertaining to the Collateral as if the Sellers were the sole and absolute owner thereof (and the Pledgor agrees to take all such action as may be appropriate to give effect to such right); and without limiting the foregoing:
(i) the Sellers may require the Pledgor to cause the Collateral to be assigned or transferred of record into the names of the Sellers or their respective nominees;
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(ii) the Sellers in their discretion may, in their names or in the name of the Pledgor or otherwise, demand, sue for, collect or receive any money or other property at any time payable or receivable on account of or in exchange for any of the Collateral, but shall be under no obligation to do so;
(iii) the Sellers may sell, assign or otherwise dispose of all or any part of the Collateral, at such place or places as they deem best and so direct, and for cash or for credit or for future delivery (without thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to effect any such disposition or of the time or place thereof (except such notice as is required by applicable statute and cannot be waived). The Sellers may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the sale may be so adjourned.
The Proceeds of each collection, sale or other disposition under this Section 4.07 shall be transferred as directed by the Sellers.
(b) Certain Securities Act Limitations. The Pledgor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Sellers may be compelled, with respect to any sale of all or any part of the Collateral, to retain an investment banker or agent, and thereupon limit purchasers to those who will agree, among other things, to acquire the Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Pledgor and each Secured Party acknowledges that any such private sales may be at prices and on terms less favorable to the Sellers than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that effecting a private sale in lieu of such public sale (as a result of, and as compelled by, such securities law restrictions) will not imply that such private sale, even if resulting in such prices and terms less favorable than such public sale solely by reason of being a private sale, shall not have been made in a commercially reasonable manner, and further agrees that the Sellers shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to permit the issuer thereof to register it for public sale.
(c) Notice. The Pledgor agrees that to the extent the Sellers are required by applicable Law to give reasonable prior notice of any sale or other disposition of any Collateral, five (5) Business Days’ notice shall be deemed to constitute reasonable prior notice.
4.08 Deficiency. If the proceeds of sale, collection or other realization of or upon the Collateral pursuant to Section 4.07 are insufficient to cover the costs and expenses of such realization and the payment in full of the Secured Obligations, the Pledgor shall remain liable for any deficiency.
4.09 Locations; Names, Etc. Without at least thirty (30) days’ prior written notice to the Sellers, the Pledgor shall not (a) change its location (as defined in Section 9-307 of the NYUCC), (b) change its name from Fintech Telecom, LLC, its current legal name, or (c) agree to or authorize any modification of the terms of any item of Collateral that would result in a change
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thereof from one Uniform Commercial Code category to another such category (such as from a General Intangible to Investment Property), if the effect thereof would be to result in a loss of perfection of, or diminution of priority for, the security interests created hereunder in such item of Collateral, or the loss of control (within the meaning of Section 9-104, 9-105, 9-106 or 9-107 of the NYUCC) over such item of Collateral.
4.10 Private Sale. The Secured Parties shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale pursuant to Section 4.07 conducted in a commercially reasonable manner. The Pledgor hereby waives any claims against the Secured Parties arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Secured Obligations, even if the Sellers accept the first offer received and do not offer the Collateral to more than one (1) offeree.
4.11 Application of Proceeds. The Proceeds of any collection, sale or other realization of all or any part of the Collateral pursuant hereto, and any other cash at the time held by the Sellers under this Section 4, shall be transferred, by wire transfer of immediately available funds, to the designated account of the Sellers for application thereof by the Sellers to payment of the Secured Obligations after payment of the fees and expenses (including attorneys’ fees of the Sellers); provided that in the event that all Secured Obligations and fees and expenses have been paid in full and the obligations of the Pledgor in respect of the Secured Obligations shall have finally expired or been terminated, the Sellers shall pay to the Pledgor or as a court of competent jurisdiction may direct, any surplus then remaining from the Proceeds of the Collateral owned by it.
4.12 Attorney-in-Fact. Without limiting any rights or powers granted by this Agreement to the Sellers while no Event of Default has occurred and is continuing, upon the occurrence and during the continuance of any Event of Default, and upon the occurrence of any event contemplated in Section 4.07, the Sellers are hereby jointly and severally appointed the attorney-in-fact of the Pledgor for the purpose of carrying out the provisions of this Section 4 and taking any action and executing any instruments that the Sellers may deem necessary to accomplish the purposes hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest. Without limiting the generality of the foregoing, at the Pledgor’s expense, (a) the Sellers shall have the power to appoint any attorney-in-fact for the purpose of carrying out the provisions of this Section 4 and taking any action and executing any instruments that the Sellers may deem necessary to accomplish the purposes hereof, (b) so long as the Sellers shall be entitled under this Section 4 to make collections in respect of the Collateral, the Sellers shall have the right and power to receive, endorse and collect all checks made payable to the order of the Pledgor representing any payment or other distribution in respect of the Collateral or any part thereof and to give full discharge for the same, and (c) the Sellers shall have the power to arrange for, including by an agent, Affiliate or nominee, to appoint an agent to translate the power of attorney granted by this Section 4.14.
4.13 Perfection and Recordation. The Pledgor authorizes the Sellers, at the Pledgor’s expense, to file Uniform Commercial Code financing statements describing the Collateral as set forth in Section 3.
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4.14 Termination. This Agreement shall automatically terminate without any further action by any of the Parties upon the release to the Pledgor in accordance with Section 4.05 (Release of Collateral to Pledgor) of the security interest in respect of all of the Collateral held hereunder. The Sellers shall also, at the expense of the Pledgor, execute and deliver to the Pledgor upon such termination such Uniform Commercial Code termination statements and such other documentation as shall be prepared by and reasonably requested by the Pledgor to effect the termination and release of the Liens on the Collateral as required by this Section 4.14.
4.15 Releases. The Sellers shall be deemed to have automatically released (without the need for any further action by the Pledgor or any other Person) any Lien covering any asset upon the termination or expiration of this Agreement in accordance with its terms.
4.16 Material Agreement. The Pledgor acknowledges that this Agreement is a material agreement between the Pledgor and the Sellers and is required to be in full force and effect as of the Closing Date as a condition to the Majority Sale pursuant to Section 7.02(a)(iv) of the SPA.
4.17 Additional Covenants of Pledgor. The Pledgor agrees as follows:
(a) The Pledgor shall fully and duly fulfill each and all of its obligations under this Agreement and shall take all other reasonable actions necessary to protect the existence, maintenance and exercise of the rights of the Secured Parties hereunder, including, but not limited to: (i) complying with any obligations imposed under the applicable Laws and regulations and other rules related, and/or in any other way linked, to the Collateral, the breach of which could have a material adverse effect on the rights of the Sellers under this Agreement, and (ii) immediately lifting any kind of injunctions and attachments on the Collateral which may affect the rights of the Sellers under this Agreement;
(b) The Pledgor shall take and adopt, promptly and diligently, all reasonable measures that the Sellers may request (including, but not limited to, the commencement of claims, actions, orders, measures, requests and demands) for the purpose of (i) protecting the title of the Pledgor to the Collateral, and (ii) preventing the Collateral from being affected in any way (but excluding any reduction in value or price) that may result in a significant adverse effect on the rights of the Sellers under this Agreement, provided that the Sellers, at their own cost and expense, shall be entitled to exercise and adopt by themselves the claims, actions, orders, measures, requests and demands that may be necessary if the Sellers determine that their rights, as they relate to the Collateral, are not adequately protected by the Collateral; and
(c) The Pledgor shall promptly notify the Sellers about the occurrence of any event or act which may adversely affect the enforceability of this Agreement so that the Sellers may adopt sufficiently in advance all the measures leading to adequate protection of its rights under and in accordance with the provisions of this Agreement, including any litigation, claim, notification or demand relating to the Collateral in this respect.
Section 5. Miscellaneous.
5.01 Notices. All notices, requests, consents and demands hereunder shall be in the English language (or accompanied by a certified translation) and in writing and shall be delivered by
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hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Pledgor, to it at:
Fintech Telecom, LLC
c/o Fintech Advisory, Inc.
375 Park Avenue
Suite 3804
New York, New York 10152
Attn: JR Rodriguez
Telephone: +1 (212) 593-3464
Fax: +1 (212) 593-3461
and
(b) if to the Sellers, to them at:
Telecom Italia
Andrea Balzarini
Phone +39 02 8595 4705
Via Negri, 1-20123 Milano
and
Telecom Italia International N.V.
Strawinskylaan 1627
1077XX Amsterdam
Francesco Saverio Lobianco
Chief Executive Officer
Phone +31 20 333 1610
Fax: +31 20 333 1601
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
5.02 No Waiver. No failure or delay by any Secured Party in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy, or any abandonment or discontinuance of steps to enforce such a right, power or remedy, preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies of the Secured Parties hereunder are cumulative and are not exclusive of any rights, powers or remedies that the Secured Parties would otherwise have.
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5.03 Amendments, Etc. The terms of this Agreement may be waived, or amended or modified only by an instrument in writing duly executed by the Pledgor and the Sellers. Any such waiver, amendment or modification shall be binding upon the Secured Parties and the Pledgor.
5.04 Costs and Expenses.
(a) The Pledgor agrees to reimburse each of the Secured Parties for all costs and expenses incurred by them (including reasonable attorneys’ fees) in connection with (i) compliance with this Agreement and any enforcement or collection proceeding in respect of this Agreement, including all manner of participation in or other involvement with (1) performance by the Sellers of any obligations of the Pledgor in respect of the Collateral that the Pledgor has failed or refused to perform, (2) bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation proceedings, or any actual or attempted sale, or any exchange, enforcement, collection, compromise or settlement in respect of any of the Collateral, and for the care of the Collateral and defending or asserting rights and claims of the Sellers in respect thereof, by litigation or otherwise, including expenses of insurance, (3) judicial or regulatory proceedings and (4) workout, restructuring or other negotiations or proceedings (whether or not the workout, restructuring or transaction contemplated thereby is consummated) and (ii) the enforcement of this Section 5.04, and all such costs and expenses shall be Secured Obligations entitled to the benefits of the collateral security provided pursuant to Section 3.
(b) The provisions of this Section 5.04 shall survive the termination of this Agreement.
5.05 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Pledgor and the Secured Parties and the respective successors and assigns thereof (provided that the Pledgor may not assign or transfer its rights or obligations hereunder without the prior written consent of the Sellers).
5.06 Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.
5.07 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
5.08 Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction in U.S. Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District
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Court of the Southern District of New York in the Borough of Manhattan, and any appellate court from any thereof, in any suit, action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(c) Waiver of Venue. Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in the first sentence of paragraph (b) of this Section 5.08. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court.
5.09 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
5.10 Captions. The captions and Section headings appearing herein are included solely for convenience of reference, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
FINTECH TELECOM, LLC,
as Pledgor
By: Fintech Advisory, Inc.
Its Managing Member
By /s/ Erika Mouynes
Name: Erika Mouynes
Title: Authorized Person
By /s/ Julio Rafael Rodriguez, Jr.
Name: Julio Rafael Rodriguez, Jr.
Title: Authorized Person
TELECOM ITALIA S.p.A.,
as Seller
By /s/ Lorenzo Calo
Name: Lorenzo Calo
Title: Authorized Representative
TELECOM ITALIA INTERNATIONAL N.V.,
as Seller
By /s/ Francesco S. Lobianco
Name: Francesco S. Lobianco
Title: Chief Executive Officer
[Signature Page to Pledge and Security Agreement]
Exhibit 13
THIS note HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE note, FILED AND MADE EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND SUCH APPLICABLE STATE SECURITIES LAWS, OR UNLESS THE ISSUER RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER TO THE EFFECT THAT REGISTRATION UNDER SUCH ACT AND SUCH APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
REPLACEMENT NOTE
US$30,000,000 | March 8, 2016 |
For value received, Telecom Italia International N.V., a company duly organized and existing under the laws of The Netherlands with its registered office at Strawinskylaan 1627, 1077XX Amsterdam (the “Issuer”), hereby undertakes to pay fintech TELECOM, LLC (the “Holder,”) THIRTY MILLION UNITED STATES DOLLARS (US$30,000,000) plus interest thereon in accordance with Section I below, in lawful money of the United States of America on the Maturity Date (as defined in Section I below), and Telecom Italia S.p.A., a company duly organized and existing under the laws of Italy with its registered office at Piazza degli Affari, 2, Milan, Italy (the “Guarantor”), hereby guarantees the Guaranteed Obligations (as defined in Section VII below) in accordance with Section VII below, in each case subject to the terms and conditions set forth in this Replacement Note (this “Note”). The Issuer further undertakes to pay interest on the outstanding principal amount at the interest rate and on the dates described in Section I below.
I. Payment Terms | |
Maturity Date: |
The unpaid principal amount of this Note, together with any accrued and unpaid interest and other amounts hereunder, is due and payable on date that is six (6) years following the date hereof (or, if such date is not a Business Day, on the Business Day immediately preceding such date) (the “Maturity Date”) or on such earlier date as provided herein.
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For purposes of this Note, “Business Day” means any day (other than Saturday or Sunday) on which commercial banks are open for business in New York, New York, United States and Milan, Italy. | |
Interest Rate: | Subject to the “Default Interest” provisions set forth below, the outstanding principal amount of this Note will accrue interest in arrears at a rate of 4.325% per annum, from October 30, 2015 until the date of payment thereof. Interest (including Default Interest) hereunder will be calculated on the basis of the actual number of days elapsed (including the first day, but excluding the last day) over a year of 365 days. |
Payment of Interest: |
Interest accrued on the outstanding principal amount of this Note will be payable in cash on each October 29 or, if such date is not a Business Day, on the following Business Day (each an “Interest Payment Date”) beginning on October 29, 2016 (or, if such date is not a Business Day, on the following Business Day).
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Default Interest: |
Any amount accrued and unpaid in accordance with the terms of this Note will accrue interest daily at a rate equal to the otherwise applicable rate per annum plus 1% per annum upon the occurrence and during the pendency of any Payment Default.
For purposes of this Note, “Payment Default” means the occurrence of any Event of Default set out in sub-clause (a) of the Event of Default section of this Note, and any Payment Default shall be deemed cured, and the interest rate on the Note shall revert to the original interest rate, when the unpaid principal or accrued interest resulting in such Event of Default is paid. |
Currency: | All payments made under this Note shall be made in United States dollars (“US$”). |
Repayment of Note: | This Note will be repaid (together with any accrued and unpaid interest and other amounts payable hereunder) on the Maturity Date or in part or in whole either (x) on the dates set forth below for mandatory prepayment below under “Mandatory Prepayment” or (y) at the Issuer’s option, at any time prior to the Maturity Date subject to the terms of “Voluntary Prepayment” below. |
Any payments by the Issuer hereunder (including any prepayments) shall be made in immediately available funds, in U.S. dollars, by wire transfer to the account open in the name of the Holder as specified in writing by the Holder to the Issuer on the date hereof; provided that (i) any changes in the payment account shall be notified in writing by the Holder to the Issuer at least ten (10) Business Days prior to any payment due hereunder and (ii) any proposed account shall be in the name of the Holder and in the US. Payments shall be made by 10:00 A.M., New York City time, on the date any such amounts become due, without presentation or surrender of this Note except for full and final payment hereof. | |
Taxes | All payments by the Issuer in respect of this Note shall be made without withholding or deduction for or on account of any present or future taxes, duties, assessments or other governmental charges of whatsoever nature unless the Issuer is compelled by law to deduct or withhold such taxes, duties, assessments or governmental charges. Any such withheld or deducted amounts shall be treated for all purposes of this Note as having been paid to the Holder and the Issuer shall not be required to pay any additional amounts to the Holder in respect of such deduction or withholding. |
Mandatory Prepayment:
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The Issuer shall mandatorily prepay the Note (in whole or in part as set forth below), without premium or penalty, upon the occurrence of any of the following events and subject to the following conditions:
1. Within 15 Business Days of the date that the Transition Payment Amount Obligation (as such term is defined in the Pledge and Security Agreement dated as of October 29, 2014 among the Issuer, the Guarantor and the Holder (the “Pledge Agreement”)) has been satisfied in full, in an amount equal to the full principal amount outstanding under this Note less US$8,000,000.
2. Within 15 Business Days of the later of (i) the date that is three (3) months following the date on which the Transition Payment Amount Obligation is satisfied in full (the “Transition Payment Date”) and (ii) the date on which all disputes outstanding on the Transition Payment Date relating to the Indemnification Obligations (as defined in the Pledge Agreement) have been fully and finally resolved and all payments due from the Holder or the Guarantor (as defined in the Pledge Agreement) have been paid, in an amount equal to the full principal amount then outstanding under this Note. |
Voluntary Prepayment: | Upon no less than two (2) Business Days’ prior notice to the Holder (such notice, a “Prepayment Notice”), the Issuer may, on any Business Day, without premium or penalty (but subject to the payment of all interest accrued and unpaid thereon), pay in whole or in part any amounts outstanding under this Note (which prepayment amount shall be specified in the relevant Prepayment Notice), provided that each partial voluntary prepayment shall be in a principal amount equal to US$1,000,000 or an amount in excess of US$1,000,000 that is an integral multiple of US$100,000. |
Prepayments, Generally | All mandatory and voluntary prepayments shall be accompanied by accrued and unpaid interest on the prepaid amount at the time of prepayment. |
Right to Elect Cancellation in whole or in part: |
Upon Breach:
Upon no less than five (5) Business Days’ prior notice to the Holder (such notice, a “Cancellation Notice”), on any Business Day solely following a default in the payment of a Secured Obligation (as defined in the Pledge Agreement), the Issuer may, if it so elects in its sole discretion, without premium or penalty, permanently cancel a principal amount of this Note and, if the Issuer so elects, any accrued but unpaid interest on such cancelled principal amount (which amount shall be specified in the relevant Cancellation Notice) equal to the amount of such unpaid Secured Obligation. The amount of any such cancelled principal and, if applicable, accrued but unpaid interest amount shall be deemed to be effective as a cash payment by the Holder in respect of such Secured Obligation (as defined in the Pledge Agreement) and, to the extent such Secured Obligation is satisfied thereby, shall entitle the Holder to all benefits arising therefrom as if the Holder had made such cash payment in respect of such Secured Obligation. |
Issuance of Replacement Note(s): |
At any time and from time to time the Issuer may if it so elects in its sole discretion, execute and deliver to the Holder one or more replacement Notes (each a “Replacement Note”) of different principal amounts that in the aggregate have a principal amount equal to the remaining outstanding principal amount of and are otherwise identical to this Note (or any Replacement Note(s)) at such time; provided that each Replacement Note shall be in a principal amount equal to US$1,000,000 or an amount in excess of US$1,000,000 that is an integral multiple of US$100,000.
In the event of a partial prepayment (whether mandatory or voluntary) or partial cancellation of any principal amount of this Note (or Replacement Notes) by the Issuer, the Issuer may execute and deliver to the Holder a Replacement Note reflecting the remaining outstanding principal amount of this Note after applying the amount of such partial prepayment or cancellation and otherwise identical to this Note.
Any Replacement Note or Replacement Notes delivered by the Issuer to the Holder pursuant to this paragraph shall be deemed to replace and supersede this Note (or previous Replacement Notes) in effect immediately prior to the delivery of such Replacement Note or Replacement Notes. |
II. Representations and Warranties | |
The Issuer and the Guarantor hereby represent and warrant to the Holder, on the date hereof, as follows: | |
(a) the Issuer and the Guarantor are duly organized, validly existing and in good standing under the laws of their jurisdictions of formation and have all requisite power and authority to enter into, perform and perform their obligations hereunder. | |
(b) The Note is a direct, unsecured and unconditional obligation of the Issuer and ranks pari passu in priority of payment with all of the Issuer’s present and future unsecured and unsubordinated obligations. |
(c) The execution and delivery of this Note by the Issuer and the Guarantor and the performance by the Issuer and the Guarantor of their obligations hereunder have been duly authorized by all requisite action on the part of the Issuer, the Guarantor and their stockholders or members, as applicable. | |
(d) The Issuer and the Guarantor have duly executed and delivered this Note and their obligations under this Note are legal, valid and binding obligations of the Issuer, and the Guarantor enforceable against the Issuer and the Guarantor in accordance with the respective terms of this Note, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally and (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought. |
(e) The execution, delivery and performance by the Issuer and the Guarantor of this Note will not: (i) violate, conflict with or result in any breach of any provision of the Organizational Documents of the Issuer or the Guarantor, (ii) except for filings that have already been made or will be made substantially simultaneously with the delivery of this Note, require the Issuer or the Guarantor to make any filing with, obtain any permit, authorization, consent or approval from, or provide any notification to any foreign, federal, state or local governmental authority, (iii) result in a violation or breach of, or, with or without due notice or lapse of time or both, constitute a default or give rise to any mandatory right of termination, cancellation or acceleration under, any of the terms, conditions or provisions of any material note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which the Issuer or the Guarantor is a party or by which the Issuer’s or the Guarantor’s shares or properties or assets may be bound, or (iv) violate any Applicable Law, decree, judgment, award, injunction or similar legal restriction in effect, excluding from the foregoing clauses (ii), (iii) and (iv) such violations, breaches or defaults which would not, individually or in the aggregate, materially impede the Issuer’s or the Guarantor’s ability to perform the obligations set forth in this Note. “Applicable Law” means any applicable international, U.S. Federal, state or other foreign local statute, treaty, law, regulation, ordinance, rule, judgment, code, rule of common law, order (including consent order), decree, approval (including any governmental approval), directive, requirement or other governmental restriction or any similar form of decision of, or determination, in each case by any governmental authority, in each case having the force of law. “Organizational Documents” means, with regard to any Person, its bylaws, articles of association, limited liability company agreement, shareholders agreement or other similar document, as amended and in effect from time to time. “Person” shall mean any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise. | |
III. Covenants | |
The Issuer hereby covenants and agrees that, on the date hereof, and thereafter until this Note is paid in full: | |
Affirmative Covenants of the Issuer: |
(a) The Issuer shall perform its obligations under this Note.
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(b) The Issuer shall promptly, and in any event within three (3) Business Days, furnish written notice to the Holder if the Issuer learns that an Event of Default has occurred.
(c) Each notice delivered under clause (b) above shall be accompanied by a statement by the Issuer setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
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Negative Covenants of the Issuer: |
(a) The Issuer shall not consolidate or merge with another company or firm or sell or lease all or substantially all of its assets to another company unless:
a. Where the Issuer merges out of existence or sells or leases all or substantially all of its assets, the other company assumes all the then existing obligations of the Issuer (including, without limitation, all obligations hereunder), either by law or contractual arrangements; and
b. if the other company is organized under the laws of a country other than The Netherlands, such other company must indemnify the Holder against (A) any tax, assessment or governmental charge imposed on any such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such merger, conveyance, transfer or lease and (B) costs or expenses incurred by the Holder that arise by reason of a law or regulation on the date of such merger, conveyance, transfer or lease, and would not have been so incurred in the absence of such merger, conveyance, transfer or lease, including any amounts required to be paid in connection with the certification or documentation of the Note to any political subdivision or taxing authority of any country in which such other company is organized or any country in which the Holder resides; provided that, if such company is incorporated in Italy, such other company shall not be liable under such indemnity to pay any additional amounts either on account of “imposta sostitutiva” or on account of any other withholding or deduction in the event of payment of interest or other amounts paid to a non-Italian resident legal entity or a non-Italian resident individual which is resident in a country which does not allow for a satisfactory exchange of information with Italy.
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VI. Termination | |
Upon the occurrence of one or more of the events set forth below (each, a an “Event of Default”), the Holder shall be entitled to accelerate all outstanding amounts due and payable under this Note (including any accrued and unpaid interest, and other amounts payable hereunder) by delivering a written notice to the Issuer declaring such acceleration (each, an “Acceleration Notice”) and upon delivery of such Acceleration Notice all obligations under this Note shall immediately become due and payable. | |
Events of Default: | (a) Failure to pay the outstanding principal and accrued interest under this Note on the Maturity Date or on any date on which such principal and accrued interest is required to be paid (including in connection with a mandatory prepayment or following notice of a voluntary prepayment) if, in each case, such failure to pay is not cured within 15 Business Days of receipt by the Issuer of notice of such default. |
(b) Failure to comply with any covenant or agreement of the Issuer hereunder, which failure, if curable, continues for a period of 35 Business Days following receipt by the Issuer of written notice thereof from the Holder. | |
(c) Any representation or warranty of the Issuer hereunder shall prove to have been inaccurate or incomplete in any material respect when made if, in each case, such breach is not cured within 15 Business Days of receipt by the Issuer of notice of such default. | |
(d) The Issuer voluntarily files for bankruptcy or insolvency or becomes subject to an involuntary petition for bankruptcy or insolvency, which bankruptcy or insolvency proceeding shall remain unstayed and in effect for a period of 60 consecutive days, or the Issuer admits in writing its inability to pay its debts as they come due. | |
VI. Miscellaneous | |
Assignments/ Transfer: |
Neither the Issuer nor the Holder shall assign or transfer all or any part of their rights or obligations under this Note to any person; provided that (i) following a Payment Default the Holder may assign the Note to any Person and (ii) where the Issuer merges into another company or sells or leases all or substantially all of its assets to another company in accordance with the “Negative Covenants of the Issuer,” the Issuer may assign all of its then existing obligations (including, without limitation, all obligations hereunder), either by law or contractual arrangements, to that successor company that has agreed to assume the obligations hereunder and provided that the restrictions on assignment and transfer herein shall not prevent the enforcement by the Issuer or Guarantor of any of its rights as set out in the Pledge Agreement. |
Registration | The Note has not been and will not be registered under the United States Securities Act of 1933, as amended (the “Securities Act”), and, subject to certain exceptions, may not be offered, sold or delivered within the United States or to U.S. persons, except as permitted by Regulation S or Rule 144A under the Securities Act and the terms hereof. |
Costs and Expenses: | Each party to this Note shall be responsible for its own costs and out-of-pocket expenses (including any legal fees) incurred by such party in connection with the preparation, negotiation and documentation of this Note, any Replacement Note and the transactions contemplated herein and therein. |
Suits for Enforcement: | If any Event of Default shall have occurred and be continuing: (i) the Holder may proceed to protect and enforce its legal and equitable rights, either by suit in equity or by action at law, or both, whether for the specific performance of any covenant or agreement contained in this Note; and (ii) the Issuer will pay the Holder such further amounts as shall be sufficient to pay the reasonable and duly documented out-of-pocket costs and expenses of collection or of otherwise enforcing the Issuer’s rights hereunder, including reasonable fees and disbursements of outside counsel. |
Remedies Cumulative: | No remedy herein conferred upon the Holder is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. |
Remedies Not Waived: | No course of dealing between the Issuer and the Holder and no delay or failure in exercising any rights under this Note shall operate as a waiver of any rights of the Holder. |
Governing Law: | This Note shall be governed by the laws of the State of New York, irrespective of any principles of conflicts of law thereof. | |
Jurisdiction: | Each party to this Note hereby agrees to submit to the non-exclusive jurisdiction of the State and federal courts of the State of New York, in each case sitting in the Borough of Manhattan, in connection with any dispute arising out of or relating to this Note. Each party to this Note irrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any such proceedings in any such court and any claim that any proceeding brought in any such court has been brought in an inconvenient forum. | |
Waiver of Jury Trial: | Each party to this Note hereby irrevocably waives all right to trial by jury on any claim, counterclaim, setoff, demand, action or cause of action (whether based on contract, tort or otherwise) arising out of or relating to this Note or any of the transactions contemplated hereby. | |
Waiver of Immunity: | To the extent that the Issuer may be or becomes entitled to claim for itself or any of its rights or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible any immunity on the ground of sovereignty or the like from suit, court jurisdiction, attachment before judgment, attachment in aid of execution of a judgment or execution of a judgment, and to the extent that in any such jurisdiction there may be attributed such an immunity (whether or not claimed), it hereby irrevocably agrees not to claim and hereby irrevocably waives such immunity with respect to its obligations under this Note. | |
Consent to Service of Process: |
The Issuer hereby irrevocably appoints Telecom Italia Sparkle of North America, Inc. (the "Process Agent"), with an office on the date hereof at 622 Third Avenue, New York, New York 10017, United States, as its agent and true and lawful attorney-in-fact in its name, place and stead to accept on behalf of the Issuer the service of copies of the summons and complaint and any other process which may be served in any such suit, action, or proceeding brought in the State of New York, and the Issuer agrees that the failure of the Process Agent to give any notice of any such service of process to the Issuer shall impair or affect the validity of such service or, to the extent permitted by applicable law, the enforcement of any judgment based thereon. Notwithstanding the foregoing, if for any reason the Process Agent appointed hereby ceases to be able to act as such, the Issuer will appoint another Person in the Borough of Manhattan as such Process Agent. The Issuer covenants and agrees that it shall take any all action, including the execution and filing of any and all documents, that may be necessary to continue the designation of a Process Agent in full force and effect and to cause the Process Agent to act as such.
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Notices: |
All notices, demands, waivers, consents or other communications to be provided pursuant to this Note shall be in writing, shall be effective upon receipt, and shall be sent by hand, facsimile, air courier or certified or registered mail, return receipt requested, as follows:
(a) If to the Issuer,
to: Francesco Saverio Lobianco Chief Executive Officer Phone +31 20 333 1610 Fax: +31 20 333 1601 Strawinskylaan 1627 1077XX Amsterdam
(b) If to the Guarantor,
to: Antonino Cusimano General Counsel Corso d’Italia, 41 – 00198 Roma Phone +39 06 3688 2720
(c) If to the Holder,
to: 375 Park Avenue Suite 3804 New York, New York 10152 Attn: JR Rodriguez Telephone: +1 (212) 593-3464 Fax: +1 (212) 593-3461 | |
Counterparts: | This Note may be executed and delivered in any number of counterparts, each of which, when executed and delivered, including via fax or e-mail as a scanned PDF document, shall be deemed to be an original, and all of which together shall constitute one and the same agreement. | |
Amendments and Waivers: | This Note shall not be modified, amended, waived, or supplemented without the written consent of each of the parties to this Note. |
Entire Agreement: | This Note supersedes all prior oral or written agreements or understandings that may exist between the Parties hereto in respect of the subject matter hereof. |
Severability: | The illegality or unenforceability in any jurisdiction of any provision of this Note or any document required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Note or such other document in such jurisdiction or such provision in any other jurisdiction. |
No Third Party Beneficiaries: | This Note is intended to bind and inure to the benefit of the parties hereto and their successors and permitted assigns. Nothing in this Note, express or implied, shall be construed to give any person, other than the parties hereto and their successors and permitted assigns, any benefit or any legal or equitable right, remedy or claim under the Terms. |
VII. Guarantee | |
The Guarantee | The Guarantor hereby unconditionally guarantees the full and punctual payment (whether at stated maturity, upon acceleration or otherwise) of each Guaranteed Obligation, as hereinafter defined. Upon failure by the Issuer to pay punctually any Guaranteed Obligation, the Guarantor shall forthwith on demand pay the amount not so paid at the place and in the manner specified herein. “Guaranteed Obligations” means (i) all amounts payable by the Issuer from time to time pursuant to this Note (including, without limitation, any interest (“Post-Petition Interest”) which accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of the Issuer) and (ii) any renewals, refinancing or extensions of any of the foregoing (including Post-Petition Interest). |
Cost of the Guarantee | The Guarantee is provided for consideration. The Cost of the Guarantee shall be entirely borne by the Issuer, in accordance with the terms and conditions agreed between Guarantor and the Issuer in a separate agreement. |
Guarantee Unconditional | The obligations of the Guarantor hereunder shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by (a) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of the Issuer hereunder, by operation of law or otherwise, (b) any modification or amendment of or supplement to this Note made in accordance with the terms and conditions contained herein, (c) any release, impairment, non-perfection or invalidity of any direct or indirect security for any obligation of the Issuer hereunder, (d) any change in the corporate existence, structure or ownership of the Issuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Issuer or its assets or any resulting release or discharge of any obligation of the Issuer contained in this Note, (e) the existence of any claim, set-off or other rights which the Guarantor may have at any time against the Issuer, the Holder or any other entity, whether in connection herewith or with any unrelated transactions, provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim, (f) any invalidity or unenforceability relating to or against the Issuer for any reason of this Note or any provision of applicable law or regulation purporting to prohibit the payment by the Issuer of any amounts payable pursuant to this Note, except if such invalidity and unenforceability is the result of the Holder’s negligence, willful misconduct or fraud, or (g) any other act or omission to act or delay of any kind by the Issuer or any other circumstance whatsoever which might constitute a legal or equitable discharge of or defense to the Guarantor’s obligations hereunder. |
Waiver by the Guarantor | The Guarantor irrevocably waives any acceptance, presentment, demand, protest and any notice not specifically provided for herein and which is not required by applicable laws, as well as any requirement that at any time any action be taken by the Holder against the Guarantor or the Issuer. |
Subrogation | Upon making full payment with respect to any obligation of the Issuer hereunder, the Guarantor shall be subrogated to the rights of the Holder against the Issuer with respect to such obligation; provided that the Guarantor shall not enforce any payment by way of subrogation so long as any Guaranteed Obligation remains unpaid. |
[Signature page follows]
IN WITNESS WHEREOF, each of the parties hereto has caused this Replacement Note to be executed and delivered as of the date first above written.
Issuer:
TELECOM ITALIA INTERNATIONAL N.V.
By: /s/ Francesco S. Lobianco
Name: Francesco S. Lobianco
Title: Chief Executive Officer
Guarantor:
TELECOM ITALIA S.p.A.
By: /s/ Francesca Petralia
Name: Francesca Petralia
Title: Attorney-in-Fact
Exhibit 14
AMENDED AND RESTATED MASTER FINANCING AGREEMENT
AMENDED AND RESTATED MASTER FINANCING AGREEMENT dated as of March 16, 2016 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), between Fintech Advisory, Inc. (“FAI”) and Fintech Investments Ltd. (“Finance Provider”).
The Parties hereby agree as follows:
SECTION 1: DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall have the following meanings:
“Accrued Rights” | As defined in subsection 6.1 hereof. |
“Asset” | 100% of the membership interests of Fintech Telecom, LLC, a limited liability company organized under the laws of the State of Delaware. |
“Asset Documents” | Agreement of Limited Liability Company, dated October 18, 2013 by Fintech Advisory Inc. as Managing Member. |
“Assignee” | Any Person to which FAI assigns its rights, claims and interests to all or part of an Asset, which Person shall be an affiliate of FAI. |
“Demand Date” | As defined in subsection 3.1(b) hereof. |
“Effective Date” | October 24, 2014 |
“Financing” | As defined in subsection 2.1 hereof. |
“Governmental Authority” | Any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions relating to government. |
“Initial Financing Amount” | $925,000,000 to be paid by Finance Provider to FAI. |
“Issuer” | Fintech Telecom, LLC, or FTL |
“Person” | Any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated association, Governmental Authority or other entity of whatever nature. |
“SPA” | The Amended and Restated Stock Purchase Agreement, dated October 24, 2014 among FTL, Telecom Italia S.p.A. and Telecom Italia International N.V. and solely for the purposes of Article 2 of the SPA, Tierra Argentea S.A. |
SECTION 2: TERMS OF FINANCING
2.1 Financing. From time to time, FAI may request to obtain from Finance Provider and Finance Provider may agree to provide to FAI, financing in connection with the capital needs of the Asset, which shall be provided through a 100% undivided economic participation interest in the Asset, (each a “Financing”); provided, that such Financing shall be solely in respect of economic rights relating to such Asset, including payments or other distributions as set forth in Section 3 hereof, and that no voting rights or rights of disposition or control in respect of such Asset(s) shall form any part of the Financing. The Financing shall include any Additional Financing (as defined below) provided by Finance Provider hereunder.
2.2 Initial Drawdown of Financing. Upon the Effective Date and subject to satisfaction of the conditions set forth herein:
(a) Finance Provider shall provide to FAI the Initial Financing Amount; and
(b) FAI shall provide to Finance Provider (and Finance Provider shall accept and take without recourse), a 100% undivided beneficial economic interest in the Asset.
2.3 Additional Financing.
(a) Within one (1) Business Day of receiving a request for additional capital from the Issuer (a “Capital Request”), FAI shall offer Finance Provider, by written notice, an additional Financing consisting of a 100% undivided economic participation interest in such additional capital (an “Additional Financing”). The purchase price for such Additional Financing shall be equal to 100% of the amount paid by FAI in respect of such Capital Request (each a “Subsequent Financing Amount”).
(b) In case Finance Provider decides to participate in such Additional Financing, FAI and Finance Provider shall execute an addendum to this Agreement stating the amount of the Additional Financing, the Subsequent Financing Amount and payment terms of such Additional Financing. Such Additional Financing shall be governed by the terms of this Agreement. For the avoidance of doubt, in case of any conflict between any provision included in any supplement, amendment or any other documentation executed pursuant to such Additional Financing and any provision of this Agreement, this Agreement shall prevail.
SECTION 3: PAYMENTS
3.1 When FAI receives or collects any cash payment of a dividend or of principal or interest or any other cash distributions or payments in respect of an Asset subject to a Financing provided hereunder (including any payments made to FAI upon the sale, assignment, disposition of the Asset or the grant of an interest in, exchange of, or other transfer of the Asset) (each a “Cash Distribution”), FAI shall hold such payment for the account of Finance Provider and
shall promptly pay over such payment to Finance Provider to the account set forth on the signature page hereto; provided that Finance Provider’s pro rata share of interest, if any, shall be appropriately adjusted to reflect the period of time during which the relevant Financing has been outstanding.
3.2 If (i) FAI shall pay any amount to Finance Provider pursuant to this Agreement in the belief or expectation that a related payment has been or will be received or collected by FAI from Finance Provider or in connection with any Asset or Asset Documents and (ii) such related payment is not received or collected by FAI, then Finance Provider will promptly on demand by FAI (the day on which such demand is made, the “Demand Date”) return such amount to FAI, together with interest accruing as agreed upon between the parties. If FAI determines at any time that any amount received or collected by FAI in respect of the Asset must be paid to any other Person pursuant to any bankruptcy or insolvency law, any sharing clause in any Asset Documents or otherwise, then, notwithstanding any other provision of this Agreement, FAI shall not be required to distribute any portion thereof to Finance Provider, and Finance Provider will promptly on demand by FAI repay, which obligation shall survive the termination of this Agreement, any portion thereof that FAI shall have distributed to Finance Provider, together with interest thereon at such rate, if any, as FAI shall pay to the Obligor or such other Person with respect thereto.
3.3 If there is any payment of a dividend or of principal or interest or any other distributions or payments in respect of an Asset subject to a Financing sold hereunder other than a Cash Distribution (an “In-Kind Distribution”), then such In-Kind Distribution, shall be retained by FAI and shall become part of and form part of the Assets that are subject to the Financing, and Finance Provider’s Financing shall be deemed to include a total undivided 100% participation interest in such In-Kind Distribution.
3.4 If any retroactive interest adjustment is applied in respect of the Asset, such adjustment shall be allocated between FAI and Finance Provider as may be necessary to give effect to the method of allocation used by the applicable agent or servicing bank in applying such retroactive interest adjustment, and the parties will promptly make such payments as may be necessary to give effect to such allocation.
SECTION 4: REPRESENTATIONS AND WARRANTIES
4.1 FAI represents and warrants to Finance Provider, and Finance Provider represents and warrants to FAI, that, as of the date hereof and as of each Effective Date,
(a) it is duly authorized and validly existing under the laws of its jurisdiction of organization, and has the power and authority, and the legal right, to make, deliver and perform this Agreement and perform its obligations hereunder in accordance with the provisions hereof;
(b) this Agreement has been duly authorized, executed and delivered by it;
(c) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law); and
(d) it acts as principal for its own account in entering into the Financing.
4.2 With respect to the Asset, except as expressly provided herein, FAI makes no representation or warranty, and shall have no responsibility, as to the due authorization or execution, genuineness, validity, enforceability or collectability of the Asset or Asset Documents or any of the terms, covenants or conditions contained therein, as the case may be, or the existence, value, perfection or priority of any collateral security for the Asset; the filing, recording or taking of any action with respect to the Asset, Asset Documents or the restructuring thereof; the financial or other condition of the Issuer or any other Person; any representation or warranty made by, or the accuracy, completeness or sufficiency of any documentation or information (or the validity, completeness or adequate disclosure of assumptions underlying any estimates, forecasts or projections contained in such information) supplied by the Issuer or any other Person in connection with the Asset or Asset Documents; the performance or observance by the Issuer of its obligations under Asset Documents or with respect to the Asset; or any other matter relating to any of the foregoing, including, without limitation, any restructuring of the Asset or the likelihood of such occurrence.
4.3 With respect to the Financing, Finance Provider represents and warrants to FAI that, as of the date hereof and as of the Effective Date for the Financing, (a) it has made an independent determination to acquire and is acquiring the Financing for its own account without a view to the distribution thereof, (b) it has made an independent appraisal of the financial condition and affairs of the Issuer and of the terms and investment merits of the Financing, the Asset and the Asset Documents without reliance on FAI or any affiliate thereof and based on such documents and information as Finance Provider has deemed necessary for such purpose, (c) it has not relied and will not rely upon FAI or any affiliate thereof to furnish any information to it regarding the financial condition and affairs of the Issuer or the Asset or the Asset Documents, (d) it is a sophisticated institutional investor familiar with investments of the nature of the Financing and fully understands and is capable of bearing all of the risks involved in acquiring the Financing, (e) if deemed necessary, it has obtained the advice of counsel in the negotiation, execution and delivery of this Agreement and the documents relating thereto and (f) no joint venture exists between FAI and Finance Provider. Finance Provider waives any claims, now or hereafter arising, it may have against FAI or any affiliate thereof arising out of or otherwise in respect of any failure to disclose any information and agrees that it has no recourse to FAI with respect to the Financing hereunder notwithstanding the occurrence or nonoccurrence of any restructuring, buyback, rebalancing or other similar transaction in respect of the Asset.
SECTION 5: CERTAIN RIGHTS AND OBLIGATIONS
5.1 Finance Provider shall acquire the Financing for its own account and risk and without recourse to FAI. With respect to the Asset, FAI shall have no obligation to take any action to collect any dividends in respect of, principal of, or interest on the Asset or any other amount payable by the Issuer or any other Person in respect thereto, to enforce in any other manner any of
the provisions of the Asset Documents or any other document, or to take any other action against the Issuer or any other Person under the Asset Documents or any other document.
5.2 Finance Provider shall pay to FAI on demand, and indemnify FAI fully against, Finance Provider’s pro rata share of any and all claims, losses, liabilities, costs, disbursements, and expenses (including, without limitation, legal fees and disbursements) incurred or paid by FAI in connection with the Financing (other than those arising out of FAI’s gross negligence or willful misconduct), which indemnification and reimbursement obligation shall survive the termination of this Agreement.
5.3 Finance Provider authorizes FAI to withhold from Finance Provider any amounts payable by FAI to Finance Provider hereunder to the extent required by law.
5.4 All collateral security and guarantees that FAI now or hereafter holds as direct or indirect guarantees of, or collateral security for, the Assets may be held by FAI in its name; provided that such collateral security and guarantees shall be held by FAI for the benefit of Finance Provider.
5.5 Each of FAI and Finance Provider shall execute and deliver such further instruments and take such further action from time to time as reasonably may be required to effect the transactions contemplated hereby.
SECTION 6: SUBSEQUENT TRANSACTIONS
6.1 Following a period that is eighteen (18) months after the Closing Date (as such term is defined in the SPA) (the “Restricted Period”), in the event FAI shall have determined, in its sole and absolute discretion, that it no longer wishes to be record holder of all or part of the Asset, FAI may assign to any Assignee without consideration all or any portion of the Asset in an aggregate amount equal to the Financing, together with the related rights and obligations under the Asset Documents and this Agreement, and shall deliver a notice of such assignment substantially in the form of Exhibit A to Finance Provider. Such assignment (a) shall comply with the Asset Documents, (b) shall substitute the Assignee as record holder of any portion of any Asset so assigned, (c) shall release FAI from all of its obligations with respect to any assigned Asset, (d) shall not affect any rights of FAI under subsection 5.2 hereof accruing in respect of the period ending on the effective date of such assignment (the “Accrued Rights”) and (e) shall be without recourse to, or any representation or warranty by, FAI. In connection with the foregoing assignment, FAI shall assign to the Assignee all of the rights (other than the Accrued Rights) and obligations of FAI with respect to the Asset under this Agreement and FAI shall be released from all its obligations hereunder relating to the Asset, provided that such assignment shall not affect any of FAI’s obligations under Section 3 hereof accrued prior to the effectiveness of such assignment. Finance Provider agrees to execute and deliver promptly such instruments and Asset Documents as FAI may request to effect such assignment and release with respect to all or any portion of the Asset so assigned and, if applicable, with respect to this Agreement.
6.2 Without limiting subsection 6.1, at any time following the Restricted Period, Finance Provider may request FAI to assign the Asset to any Assignee for (or without) consideration for fair market value (as it determines in its sole discretion). On the effective date of such Transfer, (a) FAI shall pay the net proceeds of the assignment, if any, to the Finance Provider as set
forth in Section 3, (b) the relevant Financing shall be canceled and Finance Provider shall be deemed to have relinquished all of its rights and interest in the Asset and the related Asset Documents and (c) FAI shall assign the Asset to the Assignee pursuant to documentation prepared by FAI. Such assignment shall be made pursuant to clauses (a)-(e) of subsection 6.1. In connection with the foregoing assignment, (i) if the Assignee shall be a Person other than Finance Provider, FAI shall assign to the Assignee all of the rights (other than the Accrued Rights) and obligations of FAI under this Agreement with respect to such Assets and FAI shall be released from all of its obligations hereunder relating to the Asset and (ii) if the Assignee shall be the Finance Provider, the Financing shall terminate and be of no further force or effect and FAI shall be released from all its obligations hereunder relating to the asset (provided that any such termination shall not terminate any Accrued Rights). The parties hereto agree to take such actions and execute such documents as FAI or any Assignee may reasonably request in connection with the foregoing.
SECTION 7: MISCELLANEOUS
7.1 Termination. Either party may terminate this Agreement upon prior notice to the other party (but such termination shall not affect the rights and obligations of the parties in respect of any outstanding Financing).
7.2 Notices. All notices, communications, requests and demands to or upon the respective parties hereto shall be addressed to the other party hereto at the address or telecopy number as such party may specify to the other party from time to time.
7.3 Nature of Interest. The Financing and each Additional Financing, if any, shall not bear interest. Solely for U.S. federal, state and local tax purposes, the Parties agree that the Financing and each Additional Financing, if any, shall not be treated as a debt obligation of FAI.
7.4 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without impairing or invalidating the validity, legality and enforceability of the remaining provisions contained herein and shall not affect in any way the validity, legality or enforceability of such provision in any other jurisdiction.
7.5 Expenses. Each of the parties shall bear its own expenses (including attorneys’ fees and expenses) in connection with the negotiation, preparation, execution and delivery of this Agreement and any documents relating thereto.
7.6 GOVERNING LAW. THIS AGREEMENT AND EACH CLOSING CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7.7 Counterparts. This Agreement may be executed in separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Master Financing Agreement to be executed and delivered by a duly authorized officer as of the date first above written.
FINTECH ADVISORY, INC.
By: /s/ Erika Mouynes Name: Erika Mouynes Title: Authorized Person |
FINTECH INVESTMENTS LTD.
By: /s/ Natalie Sutter Name: Natalie Sutter Title: Executive Vice President
Account Information USD: Institution: UBS AG New York, Stamford, CT 06912-0300 ABA Number: 026 007 993 Swift: UBSWUS33 For further credit: Fintech Investments Ltd. Account: 101-WA-271985-000 Ref/Contact Name: Christine Aebi
Account Information EUR: Correspondent Bank UBS AG, Frankfurt Swift: UBSWDEFF Beneficiary Bank: UBS AG, Zurich Swift: UBSWCHZH80V Beneficiary Name: Fintech Investments Ltd. Account: CH240020620626730361B Ref/Contact Name: Christine Aebi
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[Signature Page to Master Financing Agreement]
EXHIBIT A TO
MASTER FINANCING AGREEMENT
Form of Notice of Assignment of Assets Pursuant to Subsection 6.1 of Master Financing
Agreement
TO: | Fintech Investments Ltd. c/o KENDRIS AG Steinengraben 5 |
CH-4051 Basel Switzerland
Telephone: 4158 450 5240
Fax Number: 4158 450 5270
Attention: André Spörri
FROM: Fintech Advisory, Inc.
375 Park Avenue 38th Floor
New York, NY 10152
Telephone: 212 593 3500
Fax Number: 212 593 3461
Attention: J.R. Rodriguez, Erika Mouynes
DATE: [●]
RE: Amended and Restated Master Financing Agreement dated as of [●], 2016 (as amended or supplemented from time to time, the “Agreement”) between Fintech Advidosry, Inc. (“FAI”) and Fintech Investments Ltd. (“Finance Provider”).
Gentlemen:
Pursuant to subsection 6.1 of the Agreement, FAI hereby gives notice to Finance Provider of its decision to assign [if less than all, describe the portion assigned] the Asset participated to Finance Provider (the “Assigned Assets”) to [insert name of assignee] (“Assignee”), effective [insert termination date].
Upon the occurrence of FAI’s receipt of this letter countersigned by Finance Provider, FAI shall assign the Assigned Assets to Assignee, pursuant to documentation satisfactory to FAI, and the Financing with respect to the Assigned Assets shall terminate, except as specifically provided for in the Agreement.
E-A
Please indicate your agreement with the above by returning a countersigned copy of this letter to FAI.
Very truly yours,
Fitnech Advisory, Inc.
By: _______________________________
Name: Julio Rafael Rodriguez, Jr.
Title: Authorized Person
By: _______________________________
Name: Erika Mouynes
Title: Authorized Person
Agreed to and Accepted by:
Fintech Investments Ltd.
By: _______________________________
Name: Diretora Corporate Services S.A.
Title: Director
Date:
E-A
Exhibit 15
Joint Filing Agreement
In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the Class B shares, P$1.00 par value per share, of Telecom Argentina S.A., and further agree that this Joint Filing Agreement be included as an Exhibit to such joint filing, provided that, as contemplated by Section 13d-1(k)(ii), no person shall be responsible for the completeness or accuracy of the information concerning the other persons making the joint filing, unless such person knows or has reason to believe that such information is inaccurate. In evidence thereof, the undersigned hereby execute this Agreement.
Dated: March 18, 2016
DAVID MARTÍNEZ | |
By: /s/ David Martìnez | |
FINTECH ADVISORY, INC. | |
By: /s/ Erika Mouynes | |
Name: Erika Mouynes. | |
Title: Authorized Person | |
FINTECH TELECOM, LLC | |
By: /s/ Erika Mouynes | |
Name: Erika Mouynes | |
Title: Authorized Person | |
By: /s/ Julio Rafael Rodriguez Jr. | |
Name: Julio Rafael Rodriguez Jr. | |
Title: Authorized Person | |
SOFORA TELECOMUNICACIONES, S.A. | |
By: /s/ Patrizio Graziani | |
Name: Patrizio Graziani | |
Title: Chairman of the Board of Directors | |
NORTEL INVERSORA, S.A. | |
By: /s/ Patrizio Graziani | |
Name: Patrizio Graziani Title: Chairman of the Board of Directors | |