Exhibit 10.49
AMENDMENT NO. 4 TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of January 16, 2002 (this "Amendment No. 4"), is entered into by and
among PEGASO COMUNICACIONES Y SISTEMAS, S.A. DE C.V., a corporation organized
under the laws of Mexico ("Borrower"), the other members of the BORROWER GROUP,
QUALCOMM INCORPORATED, a corporation organized under the laws of Delaware
("QUALCOMM"), TELEFONAKTIEBOLAGET L.M. ERICSSON (PUBL), a limited liability
company organized under the laws of Sweden ("Ericsson"), the lenders from time
to time party to the Credit Agreement (as defined below) (together with QUALCOMM
and Ericsson, each a "Lender," and, collectively, the "Lenders"), and ABN AMRO
BANK N.V. as administrative agent for the Lenders ("Administrative Agent").
RECITALS
WHEREAS, Borrower has entered into the Amended and Restated
Credit Agreement, dated as of December 15, 1998 (as amended, the "Credit
Agreement"), by and among Borrower, QUALCOMM, Ericsson, and the Administrative
Agent, as amended by Amendment No. 1 to Amended and Restated Credit Agreement
dated as of May 27, 1999, Amendment No. 2 to Amended and Restated Credit
Agreement, dated as of November 28, 2000, and Amendment No. 3 to Amended and
Restated Credit Agreement, dated as of October 10, 2001 ("Amendment No. 3").
WHEREAS, pursuant to Amendment No. 3, the parties to the
Credit Agreement agreed to increase the Total Facility-2 Commitment under the
Credit Agreement by US$150,000,000 (the "Total Additional Commitment") by
increasing the Facility-2 Commitment of QUALCOMM in the amount of US$96,000,000
(the "QUALCOMM Additional Commitment") and increasing the Facility-2 Commitment
of Ericsson in the amount of US $54,000,000 (the "Ericsson Additional
Commitment").
WHEREAS, the Borrower desires to enter into the Interim
Funding Agreement (as amended, modified, supplemented or restated from time to
time, the "Interim Funding Agreement") by and among the Borrower, the other
members of the Borrower Group and QUALCOMM, and consented and agreed to and
acknowledged by Ericsson, the Administrative Agent and Alcatel, a corporation
organized under the laws of France ("Alcatel"), pursuant to which QUALCOMM will
agree to make Special Loans (as defined in the Interim Funding Agreement) to
Borrower from QUALCOMM's unused Facility-2 Commitment under the Credit Agreement
for the purpose, among other things, of financing the payment of operating
expenditures of Borrower in accordance with the Interim Business Plan described
in the Interim Funding Agreement.
WHEREAS, the execution and delivery of this Amendment No. 4 is
a condition precedent to the Closing Date under the Interim Funding Agreement
and the parties to the Credit Agreement desire that Borrower enter into, and
borrow Special Loans under, the Interim Funding Agreement.
AMENDMENT NO. 4 TO
QUALCOMM CREDIT AGREEMENT
WHEREAS, the parties to the Credit Agreement desire to amend
the Credit Agreement in accordance with the terms, subject to the conditions,
and in reliance upon the representations and warranties set forth below.
NOW, THEREFORE, in consideration of the foregoing recitals and
the following mutual covenants and promises, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and
intending to be legally bound, the parties agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms used but not defined in
this Amendment No. 4 shall have the meanings given to them in the Interim
Funding Agreement or, if not defined therein, in the Credit Agreement or, if not
defined therein, in the Common Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT
2.1 SECTION 9 (DEFINITIONS).
(a) DEFINITION OF "FACILITY-2 AVAILABILITY PERIOD." Section 9
is amended by deleting the definition of "Facility-2 Availability Period" in its
entirety and replacing it with the following:
"Facility-2 Availability Period" shall mean the period
commencing on November 28, 2000 and ending on the Facility-2
Availability Termination Date.
(b) DEFINITION OF "FACILITY-2 AVAILABILITY TERMINATION DATE."
A new definition of "Facility-2 Availability Termination Date" shall be added in
appropriate alphabetical order to read as follows:
"Facility-2 Availability Termination Date" shall mean, (A)
with respect to Facility-2 Loans to be disbursed under the QUALCOMM
Additional Commitment as Special Loans, December 31, 2002 or, if
earlier, the date on which the Special Loan Commitments under the
Interim Funding Agreement terminate, (B) with respect to Facility-2
Loans to be disbursed under the QUALCOMM Additional Commitment for the
purposes described in Section 3.4 of Amendment No. 3, (i) June 30,
2002, or (ii) November 6, 2003, if all of the following conditions are
satisfied by June 30, 2002: (1) a Sale Transaction has been consummated
in accordance with the terms of the Interim Funding Agreement, the Sale
Transaction Proceeds Allocation Agreement and the Definitive Agreement,
(2) all of Borrower's obligations in respect of the Backstop Fee Loan
and the Interim Loans have been paid in full in cash, (3) the Special
Loan Commitments with respect to the Backstop Fee Loan and the Interim
Loans under the Interim Funding Agreement have been irrevocably
terminated, (4) Borrower (or the entity surviving the Sale Transaction)
has executed and delivered binding and irrevocable purchase orders in
the amount of up to $96,000,000 (and the availability of such
Facility-2 Loans shall be extended only to the extent of the aggregate
amount of such purchase orders) for the purchase of equipment and
services from Ericsson, as described in Section 3.4 of Amendment No. 3,
to be delivered or provided by Ericsson on or before December
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QUALCOMM CREDIT AGREEMENT
31, 2002, and (5) Borrower has committed to pay for such purchases with
Facility-2 Loans under the QUALCOMM Additional Commitment prior to
November 6, 2003, and (C) with respect to Facility-2 Loans to be
disbursed under the Ericsson Additional Commitment, December 31, 2002.
2.2 AVAILABILITY OF FACILITY-2 COMMITMENT. On the Facility-2
Availability Termination Date applicable to Facility-2 Loans to be used by
Borrower for the purchase of equipment and services from Ericsson as described
in Section 3.4 of Amendment No. 3, the Facility-2 Commitments shall cease to be
available to Borrower for the making of such Loans.
2.3 QUALCOMM ADDITIONAL COMMITMENT. Section 3.2 of Amendment No. 3 is
hereby deleted and replaced in its entirety with the following:
QUALCOMM ADDITIONAL COMMITMENT. The QUALCOMM Additional
Commitment shall be available (a) for purposes of making Interim Loans
and the Backstop Fee Loan pursuant to the Interim Funding Agreement,
upon satisfaction of the conditions precedent to funding under the
Interim Funding Agreement and (b) for the purposes of making Facility-2
Loans under the QUALCOMM Additional Commitment for the uses specified
in Section 3.4 of Amendment No. 3, upon the satisfaction of the
following conditions precedent: (1) execution and delivery of a
Definitive Agreement satisfactory to QUALCOMM, (2) consummation of a
Sale Transaction in accordance with the terms and conditions set forth
in the Sale Transaction Proceeds Allocation Agreement and such
Definitive Agreement, (3) payment in full of all Borrower's obligations
in respect of Interim Loans and the Backstop Fee Loan, (4) the
irrevocable termination of the Special Loan Commitments under the
Interim Funding Agreement, (5) the utilization by Borrower of the full
Ericsson Additional Commitment, and (6) the satisfaction (or waiver by
QUALCOMM in its sole discretion) of the other conditions precedent to
the making of Facility-2 Loans under the Credit Agreement. QUALCOMM
shall provide loans to Borrower under the QUALCOMM Additional
Commitment only upon (x) with respect to Interim Loans and the Backstop
Fee Loan, the receipt of a Loan Request in accordance Section 2.1(d) of
the Interim Funding Agreement and (y) with respect to any other loans
permitted under the Credit Agreement, including without limitation,
loans made under the QUALCOMM Additional Commitment for the purposes
set forth in Section 3.4 of Amendment No. 3, the receipt of a Loan
Request and the supporting invoices in the manner and in accordance
with the terms and conditions set forth in Section 1.5(b)(i) of the
Credit Agreement. Without limiting the other provisions of the Credit
Agreement applicable to QUALCOMM's Facility-2 Commitment with respect
to the QUALCOMM Additional Commitment, QUALCOMM's Facility-2 Commitment
with respect to the QUALCOMM Additional Commitment shall be
automatically reinstated in accordance with its terms to the extent
that the Interim Loans and the Backstop Fee Loan are repaid by Borrower
pursuant to Section 2.2(b) and Section 2.4(b) of the Interim Funding
Agreement, respectively, prior to June 30, 2002.
AMENDMENT NO. 4 TO
-3- QUALCOMM CREDIT AGREEMENT
2.4 SECTION 3.3 OF AMENDMENT NO. 3 TO THE CREDIT AGREEMENT
(AVAILABILITY OF VAT LOANS). Section 3.3 of Amendment No. 3 is hereby deleted
and replaced in its entirety with the following:
"AVAILABILITY OF VAT LOANS. Notwithstanding anything to the
contrary in Section 1.1(b) of the Credit Agreement, Amendment No. 3 to
the Credit Agreement and the definition of "VAT Facility Availability
Period", the Lenders shall not be obligated to provide to Borrower VAT
Loans until the Lenders shall have received executed copies of the
Definitive Agreement."
2.5 PARTIAL INCORPORATION OF INTERIM FUNDING AGREEMENT. The Credit
Agreement is hereby modified by the Interim Funding Agreement, and, to the
extent that the Interim Funding Agreement relates to the subject matter of the
Credit Agreement, the Interim Funding Agreement is hereby incorporated by
reference as if set out in full in this Amendment No. 4.
SECTION 3. REFERENCE TO AND EFFECT ON CREDIT AGREEMENT AND OTHER
FINANCING AGREEMENTS
(a) On the Effective Date, each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like
import shall mean and be a reference to the Credit Agreement as amended by this
Amendment No. 4 and each reference in the Financing Agreements to the Credit
Agreement shall also mean and be a reference to the Credit Agreement as amended
by this Amendment No. 4.
(b) The execution, delivery and effectiveness of this
Amendment No. 4 shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of the Administrative Agent or the Lenders
under the Credit Agreement or any of the Financing Agreements, nor constitute a
waiver of any provision of the Credit Agreement or any of the Financing
Agreements.
SECTION 4. REAFFIRMATION OF TERMS. This Amendment No. 4 shall be
construed in connection with and as part of the Financing Agreements and all
terms, conditions, representations, warranties, covenants and agreements set
forth in the Financing Agreements, except as herein waived or amended, are
hereby ratified and confirmed and shall remain in full force and effect.
SECTION 5. ACKNOWLEDGMENTS AND WAIVERS. Each member of the Borrower
Group hereby ratifies and reaffirms the validity and enforceability of all of
the Liens and security interests heretofore granted pursuant to the Common
Agreement and the Security Documents referred to therein, for the benefit of the
Lenders, as collateral security for the Senior Indebtedness, and acknowledges
that all of such Liens and security interests, and all collateral pledged as
security for the Senior Indebtedness, continue to be and remain collateral for
the Senior Indebtedness from and after the date hereof.
AMENDMENT NO. 4 TO
-4- QUALCOMM CREDIT AGREEMENT
SECTION 6. RELEASE AND WAIVER.
(a) Each member of the Borrower Group hereby acknowledges and
agrees that: (i) it has no claim or cause of action against any Lender or the
Administrative Agent, or any of their officers, directors, employees, attorneys
or other representatives or agents under the Financing Agreements with respect
to any condition, act, omission, event, contract, liability, obligation,
indebtedness, claim, cause of action, defense, circumstance or matter of any
kind whatsoever which existed, arose or occurred at any time prior to the
execution and delivery of this Amendment No. 4 or which could arise concurrently
with the effectiveness of this Amendment No. 4 ("Claims"); (ii) it has no offset
or defense against any of its respective obligations, indebtedness or contracts
in favor of any Lender or the Administrative Agent on account of any Claims; and
(iii) it recognizes that each Lender and the Administrative Agent has heretofore
properly performed and satisfied in a timely manner all of its obligations to
and contracts with each member of the Borrower Group relating to the Financing
Agreements.
(b) Although the Administrative Agent and Lenders regard their
conduct as proper and do not believe any member of the Borrower Group to have
any claim, cause of action, offset or defense against any Lender or the
Administrative Agent in connection with the Financing Agreements, Lenders and
the Administrative Agent wish, and each member of the Borrower Group agrees, to
eliminate any possibility that any past conditions, acts, omissions, events,
circumstances or matters could impair or otherwise affect any rights, interests,
contracts or remedies of any Lender or the Administrative Agent. Therefore, each
member of the Borrower Group unconditionally releases and waives as to all
Lenders and the Administrative Agent (1) any and all liabilities, indebtedness
and obligations, whether known or unknown, of any kind of any Lender or the
Administrative Agent to any member of the Borrower Group arising under the
Financing Agreements and which exist on the date hereof, except the obligations
remaining to be performed by the Lenders as expressly stated in the Financing
Agreements; (2) any legal, equitable or other obligations or duties, whether
known or unknown, of the Lenders or of the Administrative Agent to any member of
the Borrower Group (and any rights of any member of the Borrower Group against
any Lender or the Administrative Agent) arising under the Financing Agreements
and which exist on the date hereof besides those expressly stated in the
Financing Agreements; (3) any and all claims under any oral or implied
agreement, obligation or understanding with any Lender or the Administrative
Agent, whether known or unknown, arising under the Financing Agreements and
which exist on the date hereof; and (4) all other claims, causes of action or
defenses of any kind whatsoever (if any), whether known or unknown, which any
member of the Borrower Group might otherwise have against any Lender or the
Administrative Agent on account of any Claims.
(c) EACH MEMBER OF THE BORROWER GROUP AGREES TO ASSUME THE
RISK OF ANY AND ALL UNKNOWN, UNANTICIPATED OR MISUNDERSTOOD DEFENSES, CLAIMS,
CAUSES OF ACTION, CONTRACTS, LIABILITIES, INDEBTEDNESS AND OBLIGATIONS WHICH ARE
RELEASED BY THIS AMENDMENT NO. 4 IN FAVOR OF ANY LENDER OR THE ADMINISTRATIVE
AGENT, AND EACH MEMBER OF THE BORROWER GROUP HEREBY WAIVES AND RELEASES ALL
RIGHTS AND BENEFITS WHICH IT MIGHT OTHERWISE HAVE UNDER THE LAW OF THE STATE OF
NEW YORK AND THE LAW OF THE FEDERAL DISTRICT OF MEXICO WITH REGARD TO THE
RELEASE OF SUCH UNKNOWN, UNANTICIPATED
AMENDMENT NO. 4 TO
-5- QUALCOMM CREDIT AGREEMENT
OR MISUNDERSTOOD DEFENSES, CLAIMS, CAUSES OF ACTION, CONTRACTS, LIABILITIES,
INDEBTEDNESS AND OBLIGATIONS, TO THE EXTENT (IF ANY) WHICH ANY SUCH LAWS MAY BE
APPLICABLE, EACH MEMBER OF THE BORROWER GROUP WAIVES AND RELEASES (TO THE
MAXIMUM EXTENT PERMITTED BY LAW) ANY RIGHT OR DEFENSE WHICH IT MIGHT OTHERWISE
HAVE UNDER ANY OTHER LAW OF ANY APPLICABLE JURISDICTION WHICH MIGHT LIMIT OR
RESTRICT THE EFFECTIVENESS OR SCOPE OF ANY OF ITS WAIVERS OR RELEASES UNDER THIS
AMENDMENT NO. 4.
SECTION 7. REPRESENTATIONS AND WARRANTIES. In order to induce the
Lenders and the Administrative Agent to enter into this Amendment No. 4, each
member of the Borrower Group hereby represents, warrants and covenants to the
Lenders and the Administrative Agent as follows:
7.1 Immediately after giving effect to this Amendment No. 4
(i) the representations and warranties contained in the Financing Agreements
(other than those which expressly relate to a different date) are true, accurate
and complete in all material respects as if made as of the Effective Date, (ii)
other than Known Vendor Facility Defaults, no Default or Event of Default has
occurred and is continuing and (iii) all references to the Credit Agreement in
the Financing Agreements shall be deemed to be references to the Credit
Agreement as amended by this Amendment No. 4;
7.2 The Charter Documents of (i) Borrower delivered to the
Administrative Agent remain true, accurate and complete and have not been
amended, supplemented or restated subsequent to October 2001 (other than
amendments to the Shareholders' Agreement and By-laws described in Section
3.1(b) of the Interim Funding Agreement) and continue to be in full force and
effect, and (ii) each other member of the Borrower Group delivered to the
Administrative Agent on the Closing Date remain true, accurate and complete and
have not been amended, supplemented or restated subsequent to such date and
continue to be in full force and effect.
7.3 The execution, delivery and the performance of obligations
of this Amendment No. 4 by each member of the Borrower Group has been duly
authorized by all requisite corporate action. This Amendment No. 4, as of the
Effective Date, constitutes the valid and binding obligations of each member of
the Borrower Group, enforceable in accordance with the terms herein.
7.4 The execution, delivery and performance of this Amendment
No. 4 does not and will not (i) violate or conflict with the certificate of
incorporation or by-laws of any member of the Borrower Group, (ii) conflict with
or violate any Applicable Law, or (iii) result in any breach of, or constitute a
default (or event which with the giving of notice or lapse of time, or both,
would become a default) under, or give to any Person any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of any
Lien on any of the material assets or properties of any member of the Borrower
Group pursuant to, any contract or other instrument relating to such assets or
properties to which a member of the Borrower Group is a party or by which any of
such assets or properties is bound or affected, except as would not,
AMENDMENT NO. 4 TO
-6- QUALCOMM CREDIT AGREEMENT
individually or in the aggregate, materially impair the ability of the member
Borrower to consummate the transactions contemplated by this Amendment No. 4.
SECTION 8. COUNTERPARTS. This Amendment No. 4 may he executed
in any number of counterparts and all of such counterparts taken together shall
be deemed to constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Amendment by facsimile transmission
shall be effective as delivery of a manually executed counterpart of this
Agreement.
SECTION 9. EFFECTIVENESS. This Amendment No. 4 shall be deemed
effective upon the satisfaction of all of the following conditions precedent
("Effective Date"):
9.1 AMENDMENT. Each member of the Borrower Group and each
Lender shall have duly executed and delivered this Amendment No. 4 to the
Administrative Agent.
9.2 ACKNOWLEDGMENT OF AMENDMENT AND REAFFIRMATION OF GUARANTY.
The Administrative Agent shall have received the Acknowledgment of Amendment and
Reaffirmation of Guaranty (in English and Spanish), duly executed and delivered
by each Guarantor.
9.3 CERTIFIED RESOLUTIONS. The Administrative Agent shall have
received for each member of the Borrower Group a certificate of the appropriate
officers of such member of the Borrower Group dated as of the date hereof and as
of the Effective Date certifying (i) the names and true signatures of the
incumbent officers of such member of the Borrower Group authorized to sign this
Amendment No. 4, (ii) the resolutions of such member's Board of Directors
approving and authorizing the execution, delivery and performance of this
Amendment No. 4, and (iii) that there have been no changes in the Charter
Documents of (A) Borrower since October 2001 other than any amendments to the
Shareholders' Agreement and Bylaws described in Section 3.1(b) of the Interim
Funding Agreement, and (B) each other member of the Borrower Group since the
date of certification thereof to the Administrative Agent in connection with the
closing of the Financing Agreements.
9.4 PAYMENT OF REIMBURSEMENT AND INDEMNIFICATION OBLIGATIONS.
Each member of the Borrower Group shall have paid to the Lenders and the
Administrative Agent all of its reimbursement and indemnification obligations
owing under Section 11.1 of the Credit Agreement, or shall have made
arrangements satisfactory to the Lenders and the Administrative Agent for the
payment of such obligations on the Closing Date from the proceeds of the initial
Interim Loan, including the obligation to pay all attorneys' fees and costs and
other disbursements incurred by the Lenders or the Administrative Agent in
connection with the negotiation, implementation, execution and enforcement of
this Amendment No. 4 and any acts contemplated thereby.
9.5 INTERIM FUNDING AGREEMENT CLOSING DATE. The Closing Date
shall have occurred under the Interim Funding Agreement.
9.6 OTHER DOCUMENTS AND ACTIONS. Borrower shall have duly
executed and delivered to the Administrative Agent any other documents
(including opinions and certificates)
AMENDMENT NO. 4 TO
-7- QUALCOMM CREDIT AGREEMENT
or taken any other actions as may be reasonably requested by the Lenders or the
Administrative Agent for purposes related to this Amendment No. 4.
SECTION 10. GOVERNING LAW. This Amendment No. 4 shall be governed by,
and construed in accordance with, the law of the State of New York, United
States, without reference to principles of conflicts of law (other than Section
5-1401 of the General Obligations Laws of the State of New York); provided,
however, that in connection with any legal action or proceeding (other than an
action to enforce a judgment obtained in another jurisdiction) brought in
respect to this Amendment No. 4 in the courts of Mexico or any political
subdivision thereof, this Amendment No. 4 shall be deemed to be an instrument
made under the laws of Mexico and for such purposes shall be governed by, and
construed in accordance with, the laws of the Federal District of Mexico.
[SIGNATURES TO FOLLOW]
AMENDMENT NO. 4 TO
-8- QUALCOMM CREDIT AGREEMENT
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment No. 4 to be duly executed and delivered as of the
date first above written.
PEGASO COMUNICACIONES Y SISTEMAS, S.A. DE C.V.
By: /s/ [Signature Illegible]
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Printed Name:
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Title:
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PEGASO TELECOMUNICACIONES Y SISTEMAS, S.A. DE C.V.
By: /s/ [Signature Illegible]
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Printed Name:
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Title:
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PEGASO PCS, S.A. DE C.V.
By: /s/ [Signature Illegible]
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Printed Name:
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Title:
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PEGASO RECURSOS HUMANOS, S.A. DE C.V.
By: /s/ [Signature Illegible]
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Printed Name:
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Title:
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PEGASO FINANZAS, S.A. DE C.V.
By: /s/ [Signature Illegible]
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Printed Name:
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Title:
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PEGASO FINCO I, S.A. DE C.V.
By: /s/ [Signature Illegible]
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Printed Name:
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Title:
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AMENDMENT NO. 4 TO
QUALCOMM CREDIT AGREEMENT
ABN AMRO BANK N.V.
as Administrative Agent
By: /s/ Frances O' R. Logan
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Printed Name:Frances O' R. Logan
Title: Senior Vice President
By: /s/ David Carrington
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Printed Name: David Carrington
Title: Group Vice President
QUALCOMM INCORPORATED
as a Lender
By: /s/ Anthony Thornley
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Printed Name: Anthony Thornley
Title: Chief Operating Officer/
Chief Financial Officer
AMENDMENT NO. 4 TO
QUALCOMM CREDIT AGREEMENT
TELEFONAKTIEBOLAGET L.M. ERICSSON (PUBL)
as a Lender
By: /s/ [Signature Illegible]
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Printed Name:
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Title:
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By: /s/ Ossie Fverum
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Printed Name: Ossie Fverum
Title:
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AMENDMENT NO. 4 TO
QUALCOMM CREDIT AGREEMENT