XXXXXXXX
CHANCE
Exhibit 10.23
MEMBERS OF THE COMPLETEL GROUP
AS BORROWERS
XXXXXXX SACHS INTERNATIONAL
PARIBAS
AS LEAD ARRANGERS
PARIBAS
AS FACILITY AGENT
PARIBAS
AS SECURITY AGENT
AND
OTHERS
-------------------------------------------------
AMENDED AND RESTATED
(EURO)265,000,000
CREDIT AGREEMENT
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CONTENTS
Clause Page
1. Definitions And Interpretation........................................ 1
2. The Facilities........................................................ 26
3. Utilisation Of The Tranche A Term Facility............................ 28
4. Interest Periods For Term Advances.................................... 31
5. Payment And Calculation Of Interest On Term Advances.................. 32
6. Utilisation Of The Revolving Facility................................. 33
7. Payment And Calculation Of Interest On Revolving Advances............. 36
8. Conversion And Working Capital Facility............................... 37
9. Market Disruption And Alternative Interest Rates...................... 38
10. Notification.......................................................... 39
11. Repayment Of The Term Facilities...................................... 39
12. Repayment Of The Revolving Facility................................... 40
13. Cancellation And Prepayment........................................... 40
14. Mandatory Prepayment.................................................. 43
15. Taxes................................................................. 45
16. Tax Receipts.......................................................... 46
17. Increased Costs....................................................... 48
18. Illegality............................................................ 49
19. Mitigation............................................................ 50
20. Representations....................................................... 50
21. Financial And Other Information....................................... 56
22. Financial Condition................................................... 59
23. Covenants............................................................. 63
24. Events Of Default..................................................... 70
25. Guarantee And Indemnity............................................... 74
26. Commitment Commission And Fees........................................ 78
27. Costs And Expenses.................................................... 79
28. Default Interest And Break Costs...................................... 80
29. Parent's Indemnities.................................................. 81
30. Currency Of Account And Payment....................................... 82
31. Payments............................................................... 82
32. Set-Off................................................................ 84
33. Sharing................................................................ 85
34. The Facility Agent, The Lead Arrangers And The Participants............ 86
35. Assignments And Transfers.............................................. 91
36. Additional Borrowers................................................... 95
37. Additional Guarantors.................................................. 95
38. Calculations And Evidence Of Debt...................................... 96
39. Remedies And Waivers, Partial Invalidity............................... 97
40. Notices................................................................ 98
41. Counterparts........................................................... 99
42. Amendments............................................................. 99
43. Governing Law..........................................................101
44. Jurisdiction...........................................................101
45. EIF Risk Participation.................................................102
Schedule 1 The Original Parties............................................103
Part A.................................................................103
Part B.................................................................103
Part C.................................................................105
Schedule 2 Form Of Transfer Certificate....................................106
Schedule 3 Conditions Precedent............................................109
Schedule 4 Notice Of Drawdown..............................................114
Schedule 5 Existing Encumbrances, Guarantees And Indemnities...............116
Part A Existing Encumbrances..........................................116
Part B Guarantees And Indemnities.....................................121
Schedule 6 Form Of Compliance Certificate..................................123
Schedule 7 Original Shareholders...........................................125
Schedule 8 Form Of Borrower And Guarantor Accession Memorandum.............126
Part A Memorandum.....................................................126
Part B Form Of Guarantor Accession Memorandum.........................128
Schedule 9 Additional Conditions Precedent.................................130
Schedule 10 Material Agreements............................................132
Schedule 11 Mandatory Costs................................................133
Schedule 12 Margin Adjustment............................................. 135
Schedule 13 Existing Bank Accounts........................................ 137
Schedule 14 Form Of Charge Over Business (Nantissement De Fonds
De Commerce) To Be Executed By Completel Services
S.A.S. In Accordance With Clause 23.11.3...................... 139
THIS AGREEMENT originally dated 6 January 2000 and set out below as amended and
restated as of the Effective Date, is made on 17 March 2000
BETWEEN
(1) COMPLETEL EUROPE N.V. (the "Parent");
(2) COMPLETEL S.A.S. in its capacity as the obligors' agent (the "Obligors'
Agent");
(3) THE COMPANIES listed in Part A of Schedule 1 as, and in their capacity as,
borrowers hereunder (the "Original Borrowers");
(4) THE COMPANIES listed in Part B of Schedule 1 as, and in their capacity as,
original guarantors hereunder (the "Original Guarantors");
(5) XXXXXXX XXXXX INTERNATIONAL and PARIBAS as lead arrangers of the Facilities
(the "Lead Arrangers");
(6) PARIBAS as facility agent for the Participants (the "Facility Agent");
(7) PARIBAS as security agent for the Banks (the "Security Agent");
(8) EUROPEAN INVESTMENT FUND as risk participant (the "EIF"); and
(9) THE BANKS (as defined below).
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"AART" shall have the meaning as set out in Clause 22 (Financial Condition);
and for the purpose of sub-clause 6.2.5(ii), as varied therein.
"Additional Borrower" means any company which has become an additional
borrower in accordance with Clause 36 (Additional Borrowers).
"Additional Guarantor" means any company which has become an additional
guarantor in accordance with Clause 37 (Additional Guarantors).
"Additional Obligor" means an Additional Borrower or Additional Guarantor.
"Advance" means a Revolving Advance or a Term Advance.
"Agents" means the Facility Agent and the Security Agent; and "Agent" means
any one of them.
"Amendment Agreement" means the Supplemental Deed dated 17 March 2000
pursuant to which the parties thereto agreed to amend this Agreement and the
Subordination, Security Agency and Intercreditor Deed.
"Annualised EBITDA" shall have the meaning as set out in Clause 22
(Financial Condition).
"Annualised Direct Client Revenues" shall have the meaning as set out in
Clause 22 (Financial Condition).
"Annualised Net Revenue" means, on any date of determination, the aggregate
of Direct Client Revenues and Indirect Client Revenues calculated from the
aggregate of such revenues as indicated in the three most recently delivered
monthly management statements delivered pursuant to Clause 21.3 (Monthly
Management Statements) and multiplied by four.
"Applicable Interest Rate" means, in relation to any Advance, the Taux
Effectif Global, as defined by Art. L313-1 of the French Code de la
Consommation applicable to such Advance, as determined by the Facility Agent
three Business Days prior to the proposed day for such Advance.
"Applicable Margin" means:
(a) in relation to the Tranche A Term Facility, 3.75 per cent. per annum
subject to Schedule 12 (Margin Adjustment); and
(b) in relation to the Revolving Facility and the Tranche B Term Facility,
3.00 per cent. per annum subject to Schedule 12 (Margin Adjustment).
"ART" means the Autorite de Regulation des Telecommunications (or any
successor entity).
"Authorised Signatory" means, in relation to an Obligor or proposed Obligor,
any person (I) who is duly authorised (in such manner as may be reasonably
acceptable to the Facility Agent); and (II) in respect of whom the Facility
Agent has received a certificate either (a) delivered pursuant to paragraph
A1(c) of Schedule 3 (Conditions Precedent); or (b) signed by a director or
another Authorised Signatory of such Obligor or proposed Obligor setting out
the name and signature of such person and confirming such person's authority
to act.
"Available Commitment" means, in relation to a Bank at any time, the
aggregate of its Available Tranche A Term Commitment and Available Revolving
Commitment.
"Available Revolving Commitment" means, in relation to a Bank at any time
and save as otherwise provided herein, its Revolving Commitment at such time
less its share of the Revolving Advances which are then outstanding and not
due for repayment, provided that such amount shall not be less than zero.
"Available Revolving Facility" means, at any time, the aggregate amount of
the Available Revolving Commitments adjusted, in the case of any proposed
drawdown, so as to take into account:
(a) any reduction in the Revolving Commitment of a Bank pursuant to the
terms hereof;
(b) any Revolving Advance which, pursuant to any other drawdown, is to be
made; and
(c) any Revolving Advance which is due to be repaid,
on or before the proposed drawdown date.
"Available Tranche A Term Commitment" means, in relation to a Bank at any
time and save as otherwise provided herein, its Tranche A Term Commitment at
such time less the aggregate of its share of the Tranche A Term Advances
which are then outstanding.
"Available Tranche A Term Facility" means, at any time, the aggregate amount
of the Available Tranche A Term Commitments adjusted, in the case of any
proposed drawdown, so as to take into account any reduction in the Tranche A
Term Commitment of a Bank on or before the proposed drawdown date pursuant
to the terms hereof.
"Bank" means any financial institution:
(a) named in Part C of Schedule 1 (The Banks); or
(b) which has become a party hereto in accordance with Clause 35.4
(Assignments by Banks) or Clause 35.5 (Transfers by Participants), and
which has not ceased to be a party hereto in accordance with the terms
hereof.
"Bank Accounts" means all accounts maintained by the Obligor Group with any
financial institution (other than those accounts which are the subject of a
Permitted Encumbrance).
"Borrower Accession Memorandum" means a memorandum substantially in the form
set out in Part A of Schedule 8 (Form of Borrower and Guarantor Accession
Memorandum).
"Borrowers" means the Original Borrowers and any Additional Borrowers.
"Business Day" means:
(a) a day (other than a Saturday or Sunday) which is not a public holiday
and on which banks generally are open for business in Frankfurt, Paris
and London; and
(b) (in relation to any date for payment or purchase of a sum denominated
in euro) the Trans-European Automated Real-Time Gross Settlement
Express Transfer System (TARGET), or any successor thereto, is
operating credit and transfer instructions in respect of payments in
euro.
"Business Plan" means the annual management base case for the Group
delivered to the Facility Agent pursuant to Clause 2.3 (Conditions
Precedent) as set out in Appendix 1 to the Information Memorandum.
"Business Plan Report" the report prepared by Analysys Inc. dated 12
November 1999 on the Business Plan for the Group and addressed to Xxxxxxx
Xxxxx and Paribas.
"Capital Expenditure" means any expenditure or obligations as determined in
accordance with US GAAP.
"Cash Equivalent Investments" means:
(a) debt securities denominated in sterling, in dollars or in euros ("Other
Currency") issued by the United Kingdom, the United States of America
or any Participating Member State which are not convertible into any
other form of security;
(b) debt securities denominated in sterling or any Other Currency which are
not convertible into any other form of security, rated P-1 (Xxxxx'x
Investor Services Inc.) or A-1 (Standard & Poors' Corporation) (or any
equivalent successor rating) which are not issued or guaranteed by any
member of the Group;
(c) certificates of deposit denominated in sterling or any Other Currency
issued by, and acceptances by, banking institutions authorised under
applicable legislation of any Participating Member State which at the
time of making such issue or acceptances, have outstanding debt
securities rated as provided in paragraph (b) above; and
(d) such other securities (if any) as are approved in writing by the
Facility Agent.
"CECC" means CompleTel ECC B.V..
"Charge over High Yield Account" means the charge agreement in respect of
the High Yield Account dated on or about the date hereof in the agreed form.
"Commitment" means, in relation to a Bank at any time, the aggregate of its
Tranche A Term Commitment and its Revolving Commitment.
"Compliance Certificate" means a certificate substantially in the form set
out in Schedule 6 (Form of Compliance Certificate).
"Computer System" means any computer hardware or software or any equipment
operated by electronic means with embedded software.
"Constructed" means, in relation to MAN-Network, that such fibre network has
been installed in duct either leased by or owned by the Group and that such
wireless transmission network has been installed as part of the French
Network or the German Network; and in relation to any Leased Capacity
therein, that the Lease Agreement
under which such duct, capacity or line is leased has come into full force
and effect (and all conditions (if any) therein have been satisfied in all
material respects).
"Conversion Available Amount" means 141,000,000.
"Converted Amount" means the amount as defined in Clause 8.2 (Conversion and
the Tranche B Term Facility).
"Conversion Date" means 30 December 2002.
"Credit Facility Documents" means the Finance Documents and the Intercompany
CECC Facility Agreement.
"Customer" means any person who has entered into a contract to use the MAN-
Network in Germany or France and any other person using the services of any
member of the Group pursuant to a contract including, without limitation,
information or internet services.
"Debt Service Coverage Ratio" shall have the meaning as set out in Clause 22
(Financial Condition).
"Direct Client Revenues" means the aggregate of revenues (net of allowance
for bad debts) of each member of the Group from Customers (other than
Indirect Client Revenues).
"Dispute" means any dispute referred to in Clause 44 (Jurisdiction).
"Due Diligence Reports" means the legal due diligence report prepared by
Xxxxxx Xxxx (as counsel to the Group) in relation to factual matters, other
than regulatory matters, concerning CompleTel SAS, CompleTel Services SAS
and Acces Solutions Internet dated 6 December 1999; and the due diligence
report prepared by Xxxxxxxx Chance in relation to factual matters, other
than regulatory matters, concerning CompleTel GmbH dated 31 December 1999,
each addressed to the Lead Arrangers, the Agents and the Banks.
"EBITDA" shall have the meaning as set out in Clause 22 (Financial
Condition).
"Effective Date" shall have the meaning given to this term in the Amendment
Agreement.
"Effective Global Rate" shall have the meaning set out in sub-clause 2.7.1
of Clause 2.7 (French Borrowers: Effective Global Rate of Return).
"EMU" means Economic and Monetary Union as contemplated in the Treaty on
European Union.
"EMU Legislation" means legislative measures of the European Union for the
introduction of, changeover to or operation of the euro in one or more
member states, being in part legislative measures to implement EMU.
"Encumbrance" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, (b) any arrangement with
a financial institution under which money or claims to, or the benefit of,
an account with such institution may be applied, set off or made subject to
a combination of accounts so as to effect discharge of any sum owed or
payable to such institution or (c) any other type of preferential
arrangement (including any title transfer and retention arrangement) having
a similar effect.
"Environmental Claim" means any claim, proceeding or investigation by any
person pursuant to any Environmental Law.
"Environmental Law" means any law applicable to the Telecoms Business
undertaken by the Group which relates to the pollution or protection of the
environment or harm to or the protection of human health or the health of
animals or plants.
"Environmental Permits" means any permit, licence, consent, approval and
other authorisation and the filing of any notification, report or assessment
required under any Environmental Law for the operation of the Telecoms
Business undertaken by the Group.
"EURIBOR" means, in relation to any amount to be advanced to, or owing by,
an Obligor under the Finance Documents in euro on which interest for a given
period is to accrue:
(a) the percentage rate per annum equal to the offered quotation which
appears on the page of the Telerate Screen which displays the rate of
the Banking Federation of the European Union for euro (being currently
page 248) for such period as of 11.00 a.m. (Brussels time) on the
Quotation Date for such period or, if such page or such service shall
cease to be available, such other page or such other service for the
purpose of displaying an average rate of the Banking Federation of the
European Union as the Facility Agent, after consultation with the Banks
and the Obligors' Agent, shall reasonably select; or
(b) if no quotation for euro for the relevant period is displayed and the
Facility Agent has not selected an alternative service on which a
quotation is displayed, the arithmetic mean (rounded upwards to four
decimal places) of the rates (as notified to the Facility Agent) at
which each of the Reference Banks was offering to prime banks in the
European interbank market deposits in euro of an equivalent amount and
for such period as of 11.00 a.m. (Brussels time) on the Quotation Date.
"Event of Default" means any circumstance described as such in Clause 24
(Events of Default).
"Excess Cash Flow" means, in respect of any financial year of the Parent,
EBITDA for such financial year of the Group less:
(a) Capital Expenditure incurred by any member of the Group during such
period;
(b) any amount actually paid or due and payable in respect of taxes by any
member of the Group during such period; and
(c) any payments made by any member of the Group in respect of principal,
interest and other charges on Permitted Indebtedness during such
period,
plus or, as the case may be, minus (i) any decrease or increase in the
aggregate working capital of the Group or (ii) any amounts paid or received
in respect of extraordinary or exceptional items.
"Existing Bank Accounts" means each of the accounts set out in Schedule 13
(Existing Bank Accounts).
"Exposure" means, at any time:
(a) in relation to a Bank, the aggregate of its Available Commitment and
its share of the Loan at such time less, in the case of a Participating
Lender, the aggregate of the Participated Portions of such aggregate
amount at such time; and
(b) in relation to the EIF, the aggregate of the amount of the Participated
Portions of all Participating Lenders. "Facilities" means the Term
Facilities and the Revolving Facility, and "Facility" means any one of
them.
"Facility Office" means, in relation to the Facility Agent, the office
identified with its signature below or such other office as it may select by
notice and, in relation to any Participant, the office notified by it to the
Facility Agent in writing prior to the date hereof (or, in the case of a
Transferee, at the end of the Transfer Certificate to which it is a party as
Transferee) or such other office as it may from time to time select by
notice to the Facility Agent provided that such Participant shall not be
entitled to receive (i) any payment under Clause 15 (Taxes); or (ii) any
greater payment under Clause 17 (Increased Costs) as a result of such change
in office.
"Finance Documents" means this Agreement, the Amendment Agreement, the
Intercreditor Agreement, the Security Documents, any Borrower Accession
Memorandum, any Guarantor Accession Memorandum, any fee letter delivered
pursuant to Clause 26 (Commitment Commission and Fees), any Hedging
Agreement and any other document designated as such by the Facility Agent
and the Obligors' Agent.
"Finance Parties" means the Agents, the Lead Arrangers and the Banks.
"Financial Indebtedness" means (without double counting) any indebtedness
for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit facility;
(c) any amount raised pursuant to any note purchase facility or the issue
of bonds, notes, debentures, loan stock or any similar instrument;
(d) any amount raised pursuant to any issue of shares which are expressed
to be redeemable;
(e) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with US GAAP, be treated as a
finance or capital lease;
(f) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing;
(g) any documentary or standby letter of credit facility or performance
bond facility other than in respect of a trading liability;
(h) any interest rate swap, currency swap, forward foreign exchange
transaction, cap, floor, collar or option transaction or any other
treasury transaction or any combination thereof or any other
transaction entered into in connection with protection against or
benefit from fluctuation in any rate or price (and the amount of the
Financial Indebtedness in relation to any such transaction shall be
calculated by reference to the xxxx-to-market valuation of such
transaction at the relevant time);
(i) the amount of any liability which is deferred for a period of 180 days
or more after the relevant asset or service was supplied pursuant to
any deferred purchase agreement;
(j) receivables sold or discounted (other than on a non-recourse basis);
(k) any agreement or option to re-acquire an asset if one of the primary
reasons for entering into such agreement or option is to raise finance;
and
(l) any guarantee, underwriting or indemnity for any of the items referred
to in paragraphs (a) to (k) above.
"Financial Quarter" means, in relation to the Group, those periods ending on
31 March, 30 June, 30 September and 31 December in the financial year of the
Parent.
"France" means the Republic of France.
"France Accounts" means all Bank Accounts held with account banks in France.
"French Borrower" means CompleTel Services S.A.S. or CompleTel S.A.S..
"French Network" means the telecoms networks comprising MAN-Network of the
Group installed in accordance with the relevant licences relating thereto in
each of the
following markets of France: Paris, Lyon, Marseille, Lille, Toulouse,
Grenoble and Nice (and any other city agreed to be considered part of the
network in accordance with sub-Clause 6.2.3).
"German Network" means the telecoms networks comprising MAN-Network of the
Group installed in accordance with the relevant licences relating thereto in
each of the following markets of Germany: Munich, Nuremberg, Berlin and
Essen (and any other city agreed to be considered part of the network in
accordance with sub-Clause 6.2.3).
"Germany" means the Federal Republic of Germany.
"Group" means the Parent and its subsidiaries from time to time and
CompleTel SPC II until such time as it ceases to be an Obligor pursuant to
provisions of Clause 37.3 (Resignation of CompleTel SPC II as an Original
Guarantor).
"Guarantors" means each of the Original Guarantors and each Additional
Guarantor.
"Guarantor Accession Memorandum" means a memorandum substantially in the
form set out in Part B of Schedule 8 (Form of Borrower and Guarantor
Accession Memorandum).
"Hedge Counterparty" means any Bank party to this Agreement from time to
time or any affiliate of such a Bank.
"Hedging Agreement" means each of the agreements entered into or to be
entered into between a Borrower and a Hedge Counterparty for the purposes of
hedging interest rate liabilities in accordance with Clause 23.12 (Hedging
Programme).
"High Yield Bonds" means the $147,500,000 14 per cent. senior discount notes
due 2009 of the Parent.
"High Yield Account" shall have the meaning given to this term in the Charge
over High Yield Account.
"Indirect Client Revenues" means the aggregate of revenues (net of allowance
for bad debts) of each member of the Group derived from resale without a
direct connection.
"Information Memorandum" means the document concerning the Original Obligors
which was prepared in relation to this transaction and which the Parent
authorised to be distributed by the Lead Arrangers to selected banks during
November 1999; updated, as the case may be, by further information delivered
on or after the date thereof to the Facility Agent and identified as
supplemental.
"Instructing Group" means a Participant or Participants whose Exposures
amount in aggregate to more than sixty-six and two thirds per cent. of the
Total Exposures.
"Intellectual Property" means all patents, trade marks, service marks,
designs, business names, copyrights, design rights, moral rights,
inventions, confidential information, knowhow and other intellectual
property rights and interests, whether
registered or unregistered, and the benefit of all licences, applications,
rights to use now or hereafter belonging to the any member of the Group and
required for the Telecoms Business undertaken by the Group.
"Intercompany CECC Facility Agreement" means, in relation to a French
Borrower, an intercompany loan agreement dated on or around the date hereof
and made between CECC and such French Borrower in the agreed form.
"Intercompany Loan Security Agreement" means the agreement delivered
pursuant to paragraph 22 of Schedule 3 (Condition Precedent).
"Interconnection Agreements" means the interconnection agreements set out in
Schedule 10 (Material Agreements).
"Intercreditor Agreement" means the subordination, security agency and
intercreditor deed in the agreed form dated on or around the date hereof and
made between the Original Borrowers, the Original Guarantors, the Facility
Agent, the Security Agent and others.
"Interest Period" means, save as otherwise provided herein:
(a) any of those periods mentioned in Clause 4.1 (Interest Periods); and
(b) in relation to an Unpaid Sum, any of those periods mentioned in Clause
28.1 (Default Interest Periods).
"Invested Capital" shall have the meaning as set out in Clause 22 (Financial
Condition).
"IPO" means an initial public offering of shares by the Parent or any
holding company of the Parent.
"Lease Agreement" means any lease agreement entered into by a member of the
Group in respect of Leased Capacity.
"Leased Capacity" means capacity or lines comprising the French Network or
German Network and leased to a member of the Group pursuant to a lease
agreement (for the purposes of sub-clause 22.1.6 only, other than capacity
or lines leased for the purpose of providing of digital subscriber lines).
"Licences" means relevant French and German fixed or wireless telecoms
licences issued by any governmental or Regulatory Authority or
authorisations of any governmental or Regulatory Authority necessary in
connection with the carrying on of the Telecoms Business undertaken by the
Group including, without limitation, as at the date hereof the licences
delivered by the ART under articles L.33-1 and L.34-1 of the Code de Postes
et Telecommunications, and the licences granted by the RegTP under sections
6 para. (1) no. 1 and 2 of the Telekommunikationsgesetz and "Licence" means
any of them.
"Loan" means, at any time, the aggregate of the Term Loans and the Revolving
Loan.
"Long Term" means, in relation to a Lease Agreement, a Lease Agreement where
the lease thereunder is for a period of at least five years.
"Mandatory Cost Rate" means the rate determined in accordance with Schedule
11 (Mandatory Costs).
"MAN-Network" means the network comprising duct, fibre optic cable (in each
case, for the purposes of sub-clause 22.1.6 only, other than digital
subscriber lines), Leased Capacity and wireless path route owned or
controlled by a member of the Group used in the assembly of its transmission
network of the French Network and German Network.
"Material Adverse Change" means a material and adverse change in either (a)
the financial condition or business of the Obligor Group (taken as a whole);
or (b) the ability of the Obligor Group (taken as a whole) to perform its
payment and other material obligations under the Credit Facility Documents.
"Material Adverse Effect" means a material adverse effect on (a) the
financial condition or business of the Obligor Group (taken as a whole); (b)
the ability of the Obligor Group (taken as a whole) to perform its payment
and other material obligations under the Credit Facility Documents; or (c)
the legality, validity or binding effect of the Credit Facility Documents.
"Material Agreement" means each Interconnection Agreement, Long Term Lease
Agreement in relation to fibre and Supply and Operational Agreement.
"Material Subsidiary" means, at any time, a subsidiary of the Parent which:
(a) is an Original Obligor (other than CompleTel SPC II if at such time it
is not an Obligor pursuant to Clause 37.3 (Resignation of Completel SPC
II as an Original Guarantor);
(b) has revenues representing 5 per cent. or more of the consolidated
revenues of the Group;
(c) has book assets representing 5 per cent. or more of the consolidated
book assets of the Group; or
(d) any Additional Borrower,
in each of paragraphs (b) and (c) above calculated on a consolidated basis.
Compliance with the conditions set out in paragraphs (b) and (c) shall be
determined by reference to the most recent Compliance Certificate supplied
by the Parent and the most recently delivered quarterly financial statements
pursuant to Clause 21.2 (Quarterly Management Statements).
"Necessary Authorisations" means all approvals, authorisations and licences
from, all rights granted by and all filings, registrations and agreements
with any person including, without limitation, any government or other
regulatory authority or third party necessary for the construction,
maintenance and operation of the Telecoms Business undertaken by the Group
(other than Licences and Material Agreements).
"Net Cash Proceeds" means, with respect to any disposal, lease or other
transfer of any asset an amount equal to the gross proceeds in cash and cash
equivalents of such disposal, lease or asset transfer net (to the extent
applicable) of:
(a) legal fees, accountant's fees, consultant and other customary fees and
other costs and expenses actually and reasonably incurred in connection
with such disposal, lease or asset transfer;
(b) any income, capital gains, value-added or other taxes paid or
reasonably estimated to be payable as a result thereof; and
(c) any Financial Indebtedness which is required to be repaid out of, or as
a result of, such disposal and any amount required to establish, in
accordance with market practice, a reasonable reserve for any
indemnities in respect of such disposal.
"Notice of Drawdown" means a notice substantially in the form set out in
Schedule 4 (Notice of Drawdown).
"Obligor Group" means the group comprising the Obligors from time to time.
"Obligors" means the Borrowers and the Guarantors; and "Obligor" means any
of them.
"Official Rate" means, in relation to any Advance, the taux de l'usure
calculated by the Banque de France (as provided in Article L.313-3 of the
French Code de la Consommation and implementing laws) and published in the
Journal Officiel of the French Republic applicable to floating rate loans
made for an initial duration exceeding two years for the quarter preceding
that in which such Advance is proposed to be made.
"Operational" means, in relation to a market, the commercial launch to the
public in France or, as the case may be, Germany.
"Original Financial Statements" means the audited consolidated financial
statements of the Parent for its financial year ended 31 December 1998.
"Original Obligors" means the Original Borrowers and the Original
Guarantors.
"Original Shareholders" means certain indirect shareholders of the Parent as
set out in Schedule 7 (Original Shareholders).
"Participants" means the Banks and the EIF.
"Participated Portion" means, in relation to a Participating Lender, such
Participating Lender's Available Commitment and/or share of the Loan for the
time being benefiting from the risk participation assumed by the EIF
pursuant to the Participation Agreement.
"Participating Lender" means Paribas in its capacity as grantor of a risk
participation to the EIF and/or any other Bank which has become a party to
the Participation Agreement in accordance with Clause 35.5 (Transfers by
Participants).
"Participating Member State" means any member state which has adopted the
euro as its lawful currency at the relevant time.
"Participation Agreement" means the participation agreement dated on or
about the date of the Amendment Agreement and entered into between Paribas
as Participating Lender, the EIF and the Facility Agent, and any other Bank
which has become a party to the Participation Agreement in accordance with
Clause 35.5 (Transfers by Participants).
"Permitted Acquisition" means:
(a) the purchase, subscription or acquisition of any shares of a member of
the Group by a member of the Obligor Group provided that immediately
upon the purchase, subscription or acquisition thereof, such shares are
secured substantially on the terms of the relevant Security Document
applicable to such shares prior to such purchase, subscription or
acquisition;
(b) any purchase or acquisition of assets (other than of shares) of a
member of the Group by a member of the Obligor Group, provided that
immediately upon the purchase or acquisition thereof, (i) where such
asset was secured under the terms of a Security Document, such asset
continues to be secured substantially in the terms of the relevant
Security Document applicable to such asset prior to such purchase or
acquisition; and (ii) where such asset was not so secured, security
thereover is granted to the extent that can be required pursuant to
Clause 23.11 (Security);
(c) any acquisition of a new Licence (including for the purposes of this
paragraph Licences that also may be desirable, in addition to those
that are necessary, in connection with the carrying on of such Telecoms
Business) or extension of any existing Licence (including for the
purposes of this paragraph Licences that also may be desirable, in
addition to those that are necessary, in connection with the carrying
on of such Telecoms Business) in connection with the business of the
Group;
(d) the acquisition of OK-Cable GmbH provided that the consideration paid
in respect of such acquisition does not exceed $175,000 and further
provided that on or before 24 March 2000, the shares of OK-Cable GmbH
are secured, to the extent legally possible and commercially
practicable, in favour of the
Finance Parties to secure all or any obligations of the Obligors under
the Credit Facility Documents; and
(e) with the prior consent of an Instructing Group.
"Permitted Disposal" means (i) any disposal of shares in an Obligor or
Material Subsidiary insofar as permitted by Clause 23.17 (Mergers); and (ii)
any disposal (other than a disposal of the shares in an Obligor or Material
Subsidiary insofar as not permitted by Clause 23.17 (Mergers)):
(a) by a member of the Group to a member of the Obligor Group provided that
immediately upon the purchase or acquisition thereof, where such asset
was secured under the terms of a Security Document, such asset
continues to be secured substantially in the terms of the relevant
Security Document applicable to such asset prior to such purchase or
acquisition (whether directly or indirectly by way of share pledge);
(b) on arm's length terms in the ordinary course of business;
(c) on arm's length terms of any surplus, worn out or obsolete assets or
assets not otherwise required for the efficient operation of the
business of any member of the Group;
(d) with the prior consent of an Instructing Group;
(e) which constitutes a Permitted Distribution or a Permitted Encumbrance;
(f) the application of cash in payments which are not otherwise restricted
by the terms of the Finance Documents; and
(g) disposals other than those referred to in the above paragraphs of this
definition for a consideration in aggregate for the Group not exceeding
1,000,000 in any financial year.
"Permitted Distribution" means any payment to the Parent to be applied by
the Parent towards:
(a) any interest payments falling due in respect of the High Yield Bonds
and due on or after 15 February 2004 or in respect of any other
Permitted Indebtedness specified in paragraph (g) of the definition of
Permitted Indebtedness of the Parent provided that in each case such
payment is made directly into the High Yield Account;
(b) within a reasonable period of receipt, corporate, accounting, audit and
other similar expenses actually incurred by the Parent up to an
aggregate annual amount to be received by the Parent equal to the
aggregate amount of such expenses assumed for the purpose of the
Business Plan;
(c) payment of management fees (including to CableTel Management Inc. of
management fees of 105% of all allocated costs, expenses, charges and
disbursements) incurred to the extent set out in the Business Plan;
(d) tax liabilities of the Parent; and
(e) with the prior consent of an Instructing Group.
"Permitted Encumbrance" means (other than any Encumbrance over any shares in
an Obligor or a Material Subsidiary):
(a) any Encumbrance specified in Part A to Schedule 5 (Existing
Encumbrances, Guarantees and Indemnities), if the principal amount
thereby secured is not increased;
(b) any Encumbrance over or affecting any asset acquired by a member of the
Group after the date hereof and subject to which such asset is
acquired, if:
(i) such Encumbrance was not created in contemplation of the
acquisition of such asset by a member of the Group; and
(ii) the amount thereby secured has not been increased in
contemplation of, or since the date of, the acquisition of such
asset by a member of the Group;
(c) any Encumbrance imposed by any taxation or governmental authority in
respect of amounts which are being contested in good faith and not yet
payable and for which adequate reserves have been set aside in the
books of the Group in respect of the same in accordance with US GAAP;
(d) any Encumbrance over or affecting any asset of any company which
becomes a member of the Group after the date hereof, where such
Encumbrance is created prior to the date on which such company becomes
a member of the Group, if:
(i) such Encumbrance was not created in contemplation of the
acquisition of such company; and
(ii) the amount thereby secured has not been increased in
contemplation of, or since the date of, the acquisition of such
company;
(e) any Encumbrance arising under or evidenced by a Security Document;
(f) any Encumbrance arising with the prior consent of an Instructing Group;
(g) any netting or set-off arrangement entered into by any member of the
Group in the normal course of its banking arrangements for the purpose
of netting debit and credit balances;
(h) any title transfer or retention of title arrangement entered into by
any member of the Group in the normal course of its trading activities
on the counterparty's standard or usual terms including, for the
avoidance of doubt, any such arrangement arising pursuant to the Supply
and Operational Agreements;
(i) any lien arising by operation of law and in the normal course of
business;
(j) any Encumbrances arising from any finance or capital leases in respect
of indefeasible rights of use comprising MAN-Network;
(k) any Encumbrance created by a member of the Group in substitution for an
existing Encumbrance which is a Permitted Encumbrance; and
(l) any Encumbrance not included within any of the above paragraphs of this
definition and securing indebtedness in aggregate not exceeding
3,000,000.
"Permitted Guarantees" means any guarantees or indemnities:
(a) arising under the Finance Documents;
(b) constituting Permitted Indebtedness or given by a member of the Group
in respect of Permitted Indebtedness of any member of the Obligor Group
(other than the Parent) (other than under paragraphs (f) or (g) of the
definition thereof);
(c) granted, other than in respect of Financial Indebtedness, in the
ordinary course of business on arm's length terms;
(d) with the prior consent of an Instructing Group; and
(e) specified in Part B to Schedule 5 (Existing Encumbrances, Guarantees
and Indemnities), to the extent the amount guaranteed or indemnified
thereby is not increased.
"Permitted Indebtedness" means any Financial Indebtedness incurred or to be
incurred:
(a) under the Finance Documents;
(b) by any Obligor and owing to another member of the Obligor Group,
provided that the proceeds of any such Financial Indebtedness incurred
by the Parent are directly or indirectly credited to the High Yield
Account;
(c) in respect of trade indebtedness and accrued expenses incurred in the
ordinary course of business;
(d) under any Subordinated High Yield Loans, Subordinated Shareholder Loans
or Subordinated Parent Loans;
(e) under hedging agreements between a Borrower and any of the Banks
entered into in order to hedge interest rate risks under the Facilities
and permitted in accordance with Clause 23.12 (Hedging Programme);
(f) under the High Yield Bonds;
(g) under further issues of high yield notes by the Parent on terms
satisfactory to the Participants provided that (i) the maximum
aggregate gross amount at any time shall not exceed $350,000,000 or, if
a minimum of $50,000,000 (in aggregate) of further equity is paid to
members of the Obligor Group (other than the Parent) other than from
other members of the Obligor Group (other than the Parent) for
investment in the Telecoms Business of the Obligor Group (other than
the Parent), $450,000,000; (ii) the net proceeds thereof are
downstreamed to the Obligor Group (other than the Parent) by way of
Subordinated High Yield Loans; (iii) at the time of issue the financial
covenants set out in Clause 22 (Financial Condition) are being, and
will immediately following the issue continue to be, met; and (iv) at
the time of issue no Potential Event of Default or Event of Default has
occurred and is continuing or would result from the issue of such high
yield notes;
(h) with the prior consent of an Instructing Group;
(i) in respect of any non-speculative hedging arrangements entered into in
the ordinary course of business for the genuine hedging of the relevant
underlying transaction, provided that, in the case of any such
arrangements in relation to other Permitted Indebtedness, such
arrangements are subject to the terms of the Intercreditor Agreement;
(j) any deposits or prepayments received by a member of the Group from a
Customer in respect of its services;
(k) permitted pursuant to Clause 23.15 (Loans and Guarantees); or under an
Intercompany CECC Facility Agreement; or under finance or capital
leases in respect of indefeasible rights of use comprising MAN-Network;
and
(l) up to a maximum of 7,000,000 or its equivalent in other currencies and
not included in paragraphs (a) to (k) above.
"Permitted Investments" means investments:
(a) in Cash Equivalent Investments in an aggregate amount not at any time
exceeding 5,000,000;
(b) in Cash Equivalent Investments of the proceeds of any IPO, or a high
yield issue permitted pursuant to paragraph (g) of the definition of
"Permitted Indebtedness" in Cash Equivalent Investments; and
(c) with the prior consent of an Instructing Group.
"Permitted Loans" means:
(a) loans from one member of the Obligor Group to another member of the
Obligor Group, provided that the proceeds of any such loans to the
Parent are directly or indirectly credited to the High Yield Account;
(b) loans to employees or directors of members of the Group in an aggregate
maximum amount at any time outstanding of 2,000,000; and
(c) with the prior consent of an Instructing Group.
"Potential Event of Default" means any event which will become (with the
passage of time, the giving of notice or any combination thereof in each
case as set out in Clause 24 (Events of Default)) an Event of Default.
"Prepayment Account" means an account bearing interest at market rates for
such an amount in the name of the relevant Obligor with the Security Agent
(or such other person as the Facility Agent may reasonably require) which is
pledged, charged or assigned to the Security Agent pursuant to the Security
Documents to secure all amounts due under the Credit Facility Documents and
from which the only withdrawals which may be made by the relevant Obligor
are to repay amounts due to the Finance Parties under this Agreement or
otherwise permitted under this Agreement.
"Proportion" means, in relation to a Participant, the proportion borne by
its Exposure to the Total Exposures (or, if the Total Exposures are then
zero, by its Exposure to the Total Exposures immediately prior to their
reduction to zero).
"Qualifying Bank" means a person, being a bank or Bank, which is:
(a) a French credit institution authorised to carry out banking services by
the French Credit Institutions Committee (Comite des Etablissements de
Credit et des Entreprises d'Investissement); or
(b) a foreign credit institution authorised by the French Credit
Institutions Committee to open a branch in France for the provision of
banking services; or
(c) a credit institution or financial institution having its registered
head office (siege social) in a member state of the European Economic
Area ("EEA") which either has a branch in France for the provision of
banking services or provides such services in France directly from its
home jurisdiction (libre prestation de services) following notification
of the intention of such credit institution or financial institution to
do so sent by the central banking authority of the relevant EEA member
state to the Banque de France and the acknowledgement thereof by the
Banque de France; or
(d) a credit institution or financial institution not falling within
paragraphs (a) to (c) above and which does not conduct banking
operations on a habitual basis in France as set out in French Law No
84.46 of 24 January 1984.
"Quotation Date" means, in relation to any period for which an interest rate
is to be determined under the Finance Documents, the day on which quotations
would ordinarily be given by prime banks in the European interbank market
for deposits in euro (or the currency of any Unpaid Sum) for delivery on the
first day of that period, provided that, if, for any such period, quotations
would ordinarily be given on more than one date, the Quotation Date for that
period shall be the last of those dates.
"Reference Banks" means the principal Paris offices of Barclays Bank PLC,
Citibank N.A. and Credit Lyonnais or such banks as may be appointed as such
by the Facility Agent with the consent of Obligors' Agent (such consent not
to be unreasonably withheld).
"Relevant Laws" means the French Code des Postes et Telecommuncations and
all decrees (decrets) and ordinances (arretes) issued pursuant thereto, the
German Telekommunikationsgesetz and all ordinances (Verordnungen) issued
pursuant thereto, those laws of France or Germany that relate to the
regulation of competition or antitrust in so far as they apply to Telecoms
Business undertaken by the Group or the operation of the French Network or
the German Network, each as amended or replaced from time to time, and all
other laws of France or Germany now or in the future relating to Telecoms
Business carried on by the Group or relating to telecommunications and
applicable to the Group.
"Regulatory Authorities" means the regulatory agencies of France and Germany
responsible for the monitoring, supervising or regulation of Telecoms
Business, including, without limitation, the ART and the Reg TP including
their successors and assignors.
"Reg TP" means the Regulierungsbehorde fur Telecommunikation und Post (or
any successor entity).
"Renewed Advance" means a Revolving Advance which is used to refinance a
maturing Revolving Advance and which is not more than the amount of such
maturing Revolving Advance and is to be drawn on the day such maturing
Revolving Advance is to be repaid.
"Repayment Date" means, in relation to any Revolving Advance, save as
otherwise provided herein, the last day of the Term thereof.
"Repeated Representations" means each of the representations set out in
Clause 20.1 (Status) to 20.6 (Audited Financial Statements), and 20.22
(Intellectual Property) to 20.24 (Good Title to Assets) and 20.26 (Dutch
Obligors).
"Revolving Advance" means an advance made or to be made by the Banks under
the Revolving Facility.
"Revolving Commitment" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set opposite its name under the
heading "Revolving Commitment" in Part C of Schedule 1 (The Banks).
"Revolving Facility" means:
(a) until the Conversion Date, the Tranche B Revolving Facility; and
(b) thereafter, the Working Capital Facility.
"Revolving Loan" means, at any time, the aggregate principal amount of the
outstanding Revolving Advances.
"Revolving Termination Date" means 31 December 2006.
"Route km" means the kilometres of the telecommunications path over which
MAN-Network is installed as part of the French Network and German Network,
and for the purposes of determining the Route km of the wireless path route
owned or controlled by a member of the Group, means the kilometre path as
measured by the line of sight between the transmitter transmitting and that
receiving the relevant signal.
"SAS Account" means the account number 30026/00350/0000715634J/11 maintained
by CompleTel S.A.S. with the Security Agent.
"Security Documents" means each of the security documents set out under
Section C. of Schedule 3 (Conditions Precedent) together with any other
document entered into by any member of the Group creating or evidencing
security for all or any part of the obligations of the Obligors or any of
them under any of the Credit Facility Documents whether by way of personal
covenant, charge, security interest, mortgage, pledge or otherwise.
"Senior Debt Leverage Ratio" shall have the meaning as set out in Clause 22
(Financial Condition).
"Senior Interest Coverage Ratio" shall have the meaning as set out in Clause
22 (Financial Condition).
"Subordinated Parent Loans" means any loan made to the Parent by its direct
or indirect shareholders on subordinated terms reasonably satisfactory to an
Instructing Group.
"Subordinated Shareholder Loans" means any loans made by the Parent (funded
by the Parent from equity contributions to the Parent or Subordinated Parent
Loans) to any of the Borrowers, and (i) subordinated under the terms of the
Intercreditor Agreement; and (ii) the rights of the Parent in relation
thereto assigned in favour of the Security Agent on the terms of an
Intercompany Loan Security Agreement.
"Subordinated High Yield Loans" means any loans made by the Parent (funded
by the Parent by way of a high yield issue) to any of the Borrowers, and (i)
subordinated under the terms of the Intercreditor Agreement; and (ii) the
rights of the Parent in relation thereto assigned in favour of the Security
Agent on the terms of an Intercompany Loan Security Agreement.
"Supply and Operational Agreements" means each agreement specified as such
in Schedule 10 (Material Agreements) and any replacement thereof.
"Syndication Date" means the day specified by the Lead Arrangers as the day
on which primary syndication of the Facilities is completed.
"Telecoms Business" means the development, ownership or operation of one or
more telephone, telecommunications or information systems or the provision
of telephony, telecommunication or information or internet services and any
related, ancillary or complementary business.
"Term" means, save as otherwise provided herein, in relation to any
Revolving Advance, the period for which such Revolving Advance is borrowed,
as specified in the Notice of Drawdown relating thereto.
"Term Advance" means a Tranche A Term Advance and/or a Tranche B Term
Advance.
"Term Facilities" means the Tranche A Term Facility and the Tranche B Term
Facility and "Term Facility" means any one of them.
"Term Loans" means the Tranche A Term Loan and the Tranche B Term Loan and
"Term Loan" means any one of them.
"Term Repayment Date" means each of the dates specified in Clause 11.1 (Term
Repayment Instalments), provided that if such date is not a Business Day, it
shall be deemed to be the next succeeding Business Day in the calendar month
or, if none, it shall be deemed to be the immediately preceding Business
Day.
"Total Exposures" means, at any time, the aggregate of the Participants'
Exposures.
"Total Interest Coverage Ratio" shall have the meaning as set out in Clause
22 (Financial Condition).
"Total Senior Debt" shall have the meaning as set out in Clause 22
(Financial Condition).
"Tranche A Term Advance" means an advance (as from time to time
consolidated, divided or reduced by repayment) made or to be made by the
Banks under the Tranche A Term Facility.
"Tranche A Term Availability Period" means, in relation to the Tranche A
Term Facility, the period from and including the date hereof to and
including the earlier of (a) 31 December 2000 and (b) the first Business Day
on which the Available Tranche A Term Commitment of each of the Banks is
zero.
"Tranche A Term Commitment" means, in relation to a Bank at any time and
save as otherwise provided herein, the amount set opposite its name under
the heading "Tranche A Term Commitment" in Part C of Schedule 1 (The Banks).
"Tranche A Term Facility" means the euro term loan facility granted to the
Borrowers under sub-clause 2.1.1 of Clause 2.1 (Grant of the Facilities).
"Tranche A Term Loan" means, at any time, the aggregate principal amount of
outstanding Tranche A Term Advances.
"Tranche B Revolving Facility" means the euro revolving loan facility
granted to the Borrowers under paragraph (a) of sub-clause 2.1.2 of Clause
2.1 (Grant of the Facilities).
"Tranche B Term Advance" means an advance (as from time to time
consolidated, divided or reduced by repayment) made or to be made by the
Banks under the Tranche B Term Facility.
"Tranche B Term Facility" means the euro term loan facility granted to the
Borrowers under paragraph (b)(ii) of sub-clause 2.1.2 of Clause 2.1 (Grant
of the Facilities).
"Tranche B Term Loan" means, at any time, the principal amount of the
outstanding Tranche B Term Advances.
"Transfer Certificate" means a certificate substantially in the form set out
in Schedule 2 (Form of Transfer Certificate) signed by a Participant, a
Transferee and, in the case of the EIF, the Participating Lender under
which:
(a) such Participant seeks to procure the transfer to such Transferee of
all or a part of such Participant's rights, benefits and obligations
under the Finance Documents and, in the case of a Participating Lender
or the EIF, the Participation Agreement upon and subject to the terms
and conditions set out in Clause 35.3 (Assignment and Transfers by
Participants); and
(b) such Transferee undertakes to perform the obligations it will assume as
a result of delivery of such certificate to the Facility Agent as
contemplated in Clause 35.5 (Transfers by Participants).
"Transfer Date" means, in relation to any Transfer Certificate, the date for
the making of the transfer as specified in such Transfer Certificate.
"Transferee" means a person to which a Participant seeks to transfer by
novation all or part of such Participant's rights, benefits and obligations
under the Finance Documents and, in the case of a Participating Lender or
the EIF, under the Participation Agreement pursuant to Clause 35.3
(Assignment and Transfers by Participants).
"Treaty on European Union" means the Treaty of Rome of 25 March 1957, as
amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was
signed at Maastricht on 7 February 1992 and came into force on 1 November
1993).
"Unpaid Sum" means the unpaid balance of any of the sums referred to in
Clause 28.1 (Default Interest Periods).
"US GAAP" means generally accepted accounting principles and practices in
the USA.
"Working Capital Facility" means the euro revolving loan facility granted to
the Borrowers under paragraph (b)(i) of sub-clause 2.1.2 of Clause 2.1
(Grant of the Facilities).
"Year 2000 Compliant" means, in relation to any Computer System, that any
reference to or use of a date before, on or after 31 December 1999 in the
operation of that Computer System will not have an adverse effect on the use
of that Computer System.
1.2 Interpretation
Any reference in this Agreement to:
an "affiliate" of any person shall be construed as a reference to the
ultimate holding company of that person or an entity of which that person or
its ultimate holding company (a) has direct or indirect control or (b) owns
directly or indirectly more than twenty per cent. (20%) of the share capital
or similar rights of ownership;
a document in an "agreed form", is a reference to such document either (i)
in a form previously agreed in writing by or on behalf of the Obligors'
Agent and the Facility Agent or (ii) otherwise in form and substance
satisfactory to an Instructing Group acting reasonably;
an "Agent", a "Lead Arranger", any "Bank", any "Participating Lender" or any
"Participant" shall be construed so as to include its and any subsequent
successors and permitted transferees in accordance with their respective
interests;
a transaction between a person and another person being on "arm's length
terms" shall be construed as a reference to a transaction on terms that are
fair and reasonable to and in the best interest of the first-mentioned
person;
a "change of control" shall be construed as:
(a) prior to the IPO, when the Original Shareholders taken together cease
to own or control directly or indirectly 51 per cent. of the issued
share capital of the Parent; and
(b) thereafter, when:
(i) a person or group of persons (acting together) each of which are
not Original Shareholders, own or control in aggregate 30 per
cent. or more of the issued share capital of the Parent unless
at such time the Original Shareholders together own or control
directly or indirectly in aggregate a greater proportion of the
issued share capital of the Parent; or
(ii) during any period of two consecutive calendar years, individuals
who, at the beginning of such period, constituted the board of
directors of the Parent (together with any new directors whose
election was approved by
a vote of 51 per cent. of the directors then in office), cease,
for any reason, to constitute a majority of such board of
directors then in office;
"continuing", in relation to an Event of Default, shall be construed as a
reference to an Event of Default which has not been waived and, in relation
to a Potential Event of Default, one which has not been remedied within the
relevant grace period or waived;
the "date hereof" or the "date of this Agreement" shall be construed as a
reference to 6 January 2000;
the "equivalent" on any date in one currency (the "first currency") of an
amount denominated in another currency (the "second currency") is a
reference to the amount of the first currency which could be purchased with
the amount of the second currency at the spot rate of exchange quoted by the
Facility Agent at or about 11:00 a.m. on such date for the purchase of the
first currency with the second currency;
a "holding company" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned company
or corporation is a subsidiary;
"indebtedness" shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
a "law" shall be construed as any law (including common or customary law),
statute, constitution, decree, judgment, treaty, regulation, directive, bye-
law, order or any other legislative measure of any government,
supranational, local government, statutory or regulatory body or court;
a "member state" shall be construed as a reference to a member state of the
European Union;
a "month" is a reference to a period starting on one day in a calendar month
and ending on the numerically corresponding day in the next succeeding
calendar month save that:
(a) if any such numerically corresponding day is not a Business Day, such
period shall end on the immediately succeeding Business Day to occur in
that next succeeding calendar month or, if none, it shall end on the
immediately preceding Business Day; and
(b) if there is no numerically corresponding day in that next succeeding
calendar month, that period shall end on the last Business Day in that
next succeeding calendar month,
(and references to "months" shall be construed accordingly);
"novate" or "novation" shall be construed as an assignment of rights and an
assumption of obligations;
a "person" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or
more of the foregoing;
"repay" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "prepay" (or, as the case may be, the
corresponding derivative form thereof);
a "subsidiary" of a company or corporation shall be construed as a reference
to any company or corporation:
(a) more than half the issued share capital of which is beneficially owned,
directly or indirectly, by the first-mentioned company or corporation;
or
(b) which is a subsidiary of another subsidiary of the first-mentioned
company or corporation;
a "successor" shall be construed so as to include a permitted assignee or
successor in title of such party and any person who under the laws of its
jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under this Agreement or to which, under such laws,
such rights and obligations have been transferred;
"tax" shall be construed so as to include any tax, levy, impost, deduction,
duty or other charge of a similar nature (including any penalty or interest
payable in connection with any failure to pay or any delay in paying any of
the same);
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time;
a "wholly-owned subsidiary" of a company or corporation shall be construed
as a reference to any company or corporation which has no other shareholders
or members except that other company or corporation and that other company's
or corporation's wholly-owned subsidiaries or persons acting on behalf of
that other company or corporation or its wholly-owned subsidiaries; and
the "winding-up", "dissolution" or "administration" of a company or
corporation shall be construed so as to include any equivalent or analogous
proceedings under the law of the jurisdiction in which such company or
corporation is incorporated or any jurisdiction in which such company or
corporation carries on business including the seeking of liquidation,
winding-up, reorganisation, dissolution, administration, arrangement,
adjustment, protection or relief of debtors.
1.3 Currency Symbols and Definitions
1.3.1 "$" and "dollars" denote lawful currency of the United States of
America.
1.3.2 "EURO" or "euro" means the single currency unit of the European Union
as constituted by the Treaty on European Union as referred to in EMU
Legislation and "euro unit" means the currency unit of the euro as
defined in EMU Legislation.
1.3.3 "(Pounds)" or "sterling" denote lawful currency of the United
Kingdom.
1.4 Agreements and Statutes
Any reference in this Agreement to:
1.4.1 this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be,
such other agreement or document as the same may have been, or may
from time to time be, amended, varied, novated or supplemented,
including for the avoidance of doubt as amended pursuant to the
Amendment Agreement; and
1.4.2 a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time to
time be, amended or, in the case of a statute, re-enacted.
1.5 Headings
Clause and Schedule headings are for ease of reference only.
1.6 Time
Any reference in this Agreement to a time of day shall, unless a contrary
indication appears, be a reference to London time.
2. THE FACILITIES
2.1 Grant of the Facilities
The Xxxxx xxxxx to the Borrowers, upon the terms and subject to the
conditions hereof:
2.1.1 Tranche A Term Facility: a euro term loan facility in an aggregate
amount of (Euro) 105,000,000; and
2.1.2 (a) Tranche B Revolving Facility: a euro revolving loan facility
in an aggregate amount of (Euro) 160,000,000 until the
Conversion Date; and
(b) thereafter:
(i) Working Capital Facility: a euro revolving loan
facility in an aggregate amount of (Euro) 19,000,000;
and
(ii) Tranche B Term Facility: a euro term loan facility,
subject to Clause 8.2 (Conversion and Tranche B Term
Facility), up to an aggregate amount of (Euro)
141,000,000.
2.2 Purpose and Application
The Facilities are intended for the financing of the development of the
Telecoms Business of the Group in France and Germany in accordance with the
Business Plan and, accordingly, each Borrower shall apply all amounts raised
by it hereunder in or
towards satisfaction of such requirements and none of the Finance Parties or
the EIF shall be obliged to concern themselves with such application.
2.3 Conditions Precedent
Save as the Participants may otherwise agree, none of the Borrowers may
deliver any Notice of Drawdown unless the Facility Agent has confirmed to
the Obligors' Agent and the Participants that it has received all of the
documents and other evidence listed in Schedule 3 (Conditions Precedent) and
that each is, in form and substance, satisfactory to the Facility Agent
(acting reasonably).
2.4 Participants' Obligations Several
The obligations of each Participant are several and the failure by a
Participant to perform its obligations hereunder shall not affect the
obligations of an Obligor towards any other party hereto nor shall any other
party be liable for the failure by such Participant to perform its
obligations hereunder.
2.5 Participants' Rights Several
The rights of each Participant are several and any debt arising hereunder at
any time from an Obligor to any of the other parties hereto shall be a
separate and independent debt. Each such party shall be entitled to protect
and enforce its individual rights arising out of this Agreement
independently of any other party (so that it shall not be necessary for any
party hereto to be joined as an additional party in any proceedings for this
purpose).
2.6 Nature of Obligors' rights and obligations hereunder
2.6.1 CompleTel S.A.S. as Obligors' Agent: Each Obligor (other than
CompleTel S.A.S.) by its execution of this Agreement or a Borrower
Accession Memorandum or a Guarantor Accession Memorandum irrevocably
appoints CompleTel S.A.S. to act on its behalf as its agent in
relation to the Finance Documents and irrevocably authorises (i)
CompleTel S.A.S. on its behalf to supply all information concerning
itself contemplated by this Agreement or the Amendment Agreement to
the Finance Parties and the EIF and to give all notices and
instructions (including, in the case of a Borrower, Notices of
Drawdown), to execute on its behalf any Borrower Accession Memorandum
or Guarantor Accession Memorandum and to make such agreements capable
of being given or made by any Obligor notwithstanding that they may
affect such Obligor, without further reference to or the consent of
such Obligor and (ii) each Finance Party and the EIF to give any
notice, demand or other communication to such Obligor pursuant to the
Credit Facility Documents to CompleTel S.A.S. on its behalf, and in
each case such Obligor shall be bound thereby as though such Obligor
itself had given such notices and instructions (including, without
limitation, any Notices of Drawdown) or executed or made such
agreements or received any such notice, demand or other
communication.
2.6.2 Obligors' Agent's acts binding: Every act, omission, agreement,
undertaking, settlement, waiver, notice or other communication given
or made by the
Obligors' Agent or given to the Obligors' Agent under this Agreement
or the Amendment Agreement, or in connection with this Agreement or
the Amendment Agreement (whether or not known to any other Obligor
and whether occurring before or after such other Obligor became an
Obligor under this Agreement or the Amendment Agreement) shall be
binding for all purposes on all other Obligors as if the other
Obligors had expressly made, given or concurred with the same. In the
event of any conflict between any notices or other communications of
the Obligors' Agent and any other Obligor, those of the Obligors'
Agent shall prevail.
2.6.3 Resignation of Obligors' Agent: An Obligors' Agent may resign its
appointment hereunder by giving not less than ten Business Days'
prior written notice to that effect to the Facility Agent, provided
that no such resignation shall be effective until a successor
consents in writing to the Facility Agent to be appointed.
2.7 French Borrowers: Effective Global Rate of Return
2.7.1 For the purposes of Articles L.313-1 to L.313-6 of the French Code de
la Consommation, the parties hereto acknowledge that, as a result of
(i) the variation of the rate of interest and in the Mandatory Costs
Rate during the period of utilisation and repayment of the
Facilities; and (ii) the selection by the Borrower of floating
interest rates and the fluctuation of such rates, it is not possible
at the date hereof to determine the actual percentage rate of
interest (Taux Effectif Global) (the "Effective Global Rate") within
the meaning of the said Articles.
2.7.2 For the purpose of application of articles L 313-1, R 313-1 and R
313-2 of the Code de la Consommation, it is specified for indicative
purposes that, for a full utilisation of the Facilities as per
schedule in Clause 3.2.3 for each Financial Quarter, for Interest
Periods or Terms (as applicable) of three months, and taking into
account the rate of three-month EURIBOR on 3 January 2000 of 3.338%
per year, the Effective Global Rate of the Facilities would, at such
date, be 7.39% per year, and the periodic interest rate (taux de
periode) would be 1.8474%. Such indicative rates include EURIBOR plus
the Applicable Margin (calculated on the assumption that the
Mandatory Costs Rate is zero, and that no adjustment will be made
pursuant to Schedule 12 (Margin Adjustment), as well as any fees,
costs and other expenses (including legal expenses) due by any
Borrower in respect of this Agreement which the Code de la
Consommation, as interpreted on the date hereof, require to be taken
into account.
3. UTILISATION OF THE TRANCHE A TERM FACILITY
3.1 Drawdown Conditions for Tranche A Term Advances
A Tranche A Term Advance will be made by the Banks to a Borrower if:
3.1.1 not more than ten nor less than four Business Days before 11:00 a.m.
Paris time on the proposed date for the making of such Tranche A Term
Advance, the Facility Agent has received a completed Notice of Drawdown
from such Borrower;
3.1.2 the proposed date for the making of such Tranche A Term Advance is a
Business Day within the Tranche A Term Availability Period;
3.1.3 the proposed date for the making of such Tranche A Term Advance is not
less than ten Business Days after the date upon which the previous
Tranche A Term Advance (if any) was made;
3.1.4 the proposed amount of such Tranche A Term Advance is (a) (if less than
the Available Tranche A Term Facility) a minimum amount of (Euro)
5,000,000 and an integral multiple of (Euro) 1,000,000 or (b) equal to
the amount of the Available Tranche A Term Facility;
3.1.5 the conditions set out in Clause 3.2 (Tranche A Term Facility
Availability Tests) are satisfied;
3.1.6 the Repeated Representations are true in all material respects on and as
of the proposed date for the making of such Tranche A Term Advance before
and after giving effect to such and to the application of the proceeds
therefrom, as though made on and as of such date unless such Repeated
Representation refers specifically to an earlier date;
3.1.7 no Event of Default or Potential Event of Default has occurred and is
continuing or would result from the making of such Tranche A Term
Advance;
3.1.8 the making of such Tranche A Term Advance would not result in more than
15 Term Advances being outstanding as of the proposed date for making
such Tranche A Term Advance; and
3.1.9 each Advance requested by a French Borrower shall also be requested
jointly by CECC and if, on the proposed date for the making of such
Advance:
(a) the Official Rate is greater than or equal to the Applicable
Interest Rate, the Advance shall be made to that French Borrower and
not to CECC; or
(b) the Official Rate is less than the Applicable Interest Rate,
(i) the Advance shall be made to CECC and not to that French
Borrower;
(ii) that French Borrower will be deemed to have requested an amount
equal to the Advance to be disbursed to it under the
Intercompany CECC Facility Agreement by CECC on the proposed
date for the making of such Advance;
(iii) CECC shall on such date be obliged to advance an amount equal to
such Advance to that French Borrower under the Intercompany CECC
Facility Agreement; and
(iv) accordingly CECC shall direct the Facility Agent to make the
Advance directly to the French Borrower in satisfaction of its
obligation under the Intercompany CECC Facility Agreement.
3.2 Tranche A Term Facility Availability Tests
The following are the conditions for the purposes of sub-clause 3.1.5 above
and sub-clause 6.2.2 below:
3.2.1 On the proposed date for making the proposed Advance, the Obligors'
Agent has confirmed to the Facility Agent that the Group is
Operational in at least the markets of Paris, Lyon, Marseille and
Lille in the French Network and at least two of the four markets
comprising the German Network; and
3.2.2 On the date of delivery of the relevant Notice of Drawdown, and on
the proposed date for making of the proposed Advance, Total Senior
Debt expressed as a percentage of the aggregate of Invested Capital
and Total Senior Debt as set out below for the relevant Financial
Quarter in which the proposed Advance is to be made will not be
exceeded, such percentage to be calculated on the basis that the
amount of Total Senior Debt is adjusted to take account of the
proposed Advance and any other changes to Total Senior Debt which
will occur on or before the date of the proposed Advance:
Financial Quarter ending Total Senior Debt expressed as a
percentage of the aggregate of Invested
Capital and Total Senior Debt (%)
31 March 2000 35
30 June 2000 40
30 September 2000 47
31 December 2000 50
provided that this condition shall only apply if, following the
making of the proposed Advance, the Tranche A Term Loan will be an
amount equal to or greater than 47 million.
3.2.3 On the date of delivery of the relevant Notice of Drawdown, and on
the proposed date for making of the proposed Advance, the aggregate
amount of the Tranche A Term Loan and the Tranche B Revolving Loan as
set out below for the relevant Financial Quarter in which the
proposed Advance is to be made will not be exceeded, such aggregate
amount to be calculated on the
basis that the amount of the Tranche A Term Loan, or as the case
may be, Tranche B Revolving Loan is adjusted to take account of
the proposed Advance and any other changes to the Tranche A Loan
and/or the Tranche B Revolving Loan which will occur on or before
the date of the proposed Advance:
Financial Quarter Ending Aggregate Amount of Tranche A
Term Loan and Tranche B Revolving Loan
(Euro million)
31 December 1999 47
31 March 2000 47
30 June 2000 118
30 September 2000 166
31 December 2000 213
31 March 2001 213
30 June 2001 237
30 September 2001 237
31 December 2001 237
31 March 2002 237
30 June 2002 265
3.3 Each Bank's Participation in Tranche A Term Advances
Each Bank will participate through its Facility Office in each Tranche A
Term Advance made pursuant to Clause 3.1 (Drawdown Conditions for Tranche A
Term Advances) in the proportion borne by its Available Tranche A Term
Commitment to the Available Tranche A Term Facility immediately prior to the
making of that Tranche A Term Advance.
3.4 Reduction of Available Tranche A Term Commitment
If a Bank's Available Tranche A Term Commitment is reduced in accordance
with the terms hereof after the Facility Agent has received the Notice of
Drawdown for a Tranche A Term Advance and such reduction was not taken into
account in the Available Tranche A Term Facility, then the amount of that
Tranche A Term Advance shall be reduced accordingly.
4. INTEREST PERIODS FOR TERM ADVANCES
4.1 Interest Periods
The period for which a Term Advance is outstanding shall be divided into
successive periods each of which (other than the first, which shall begin on
the day such Term Advance is made) shall start on the last day of the
preceding such period.
4.2 Duration
The duration of each Interest Period shall, save as otherwise provided
herein, be one, two, three or six months or such other period as may be
agreed to by the Facility Agent acting on the instructions of all the Banks
and the EIF, in each case as a
Borrower to which such Term Advance is made may by not less than four
Business Days' prior notice to the Facility Agent select, provided that:
4.2.1 if such Borrower fails to give such notice of its selection in
relation to an Interest Period, the duration of that Interest Period
shall, subject to sub-clauses 4.2.2 and 4.2.3, be three months;
4.2.2 a Borrower (or the Obligors' Agent on its behalf) may select an
Interest Period of less than one month if necessary to ensure that
there are sufficient Tranche A Term Advances which have and, as the
case may be, the Tranche B Term Advances which have, an Interest
Period ending on a Term Repayment Date for the Borrowers to make the
repayment due on that date; and
4.2.3 prior to the Syndication Date, Interest Periods shall be one month
(or, if less, of such duration as is necessary to end on the
Syndication Date) or such other period as the Lead Arrangers and such
Borrower may agree.
4.3 Consolidation of Term Advances
If two or more Interest Periods relating to the same Term Facility and to
the same Borrower end at the same time, then, on the last day of those
Interest Periods, the Term Advances to which they relate shall be
consolidated into and treated as a single Term Advance.
4.4 Division of Term Advances
The Borrower to which a Term Advance is made may, by not less than four
Business Days' prior notice to the Facility Agent, direct that any such Term
Advance shall, at the beginning of any Interest Period relating thereto, be
divided into (and thereafter, save as otherwise provided herein, treated in
all respects as) two or more Term Advances in such amounts (in aggregate,
equalling the amount of the Term Advance being so divided) as shall be
specified by such Borrower in such notice, provided that such Borrower shall
not be entitled to make such a direction if:
4.4.1 as a result of so doing there would be more than 15 outstanding Term
Advances and Revolving Advances; or
4.4.2 any Term Advance thereby coming into existence would be of an amount
of less than (Euro) 15,000,000.
5. PAYMENT AND CALCULATION OF INTEREST ON TERM ADVANCES
5.1 Payment of Interest
On the last day of each Interest Period the Borrower to which such Term
Advance has been made shall pay accrued interest on the Term Advance to
which such Interest Period relates.
5.2 Calculation of Interest
The rate of interest applicable to a Term Advance from time to time during
an Interest Period relating thereto shall be the rate per annum which is the
sum of:
5.2.1 the Applicable Margin;
5.2.2 the Mandatory Cost Rate in respect thereof at such time; and
5.2.3 EURIBOR on the Quotation Date therefor.
6. UTILISATION OF THE REVOLVING FACILITY
6.1 Drawdown Conditions for Revolving Advances
A Revolving Advance will be made by the Banks to a Borrower if:
6.1.1 not more than ten nor less than four Business Days before the
proposed date for the making of such Revolving Advance, the Facility
Agent has received a completed Notice of Drawdown from such Borrower;
6.1.2 the proposed date for the making of such Revolving Advance is a
Business Day falling (a) after 31 May 2000; and (b) one month or more
before the Revolving Termination Date;
6.1.3 the proposed date for the making of such Revolving Advance is not
less than five Business Days after the date upon which the previous
Revolving Advance (if any) was made;
6.1.4 the proposed amount of such Revolving Advance is (a) (if less than
the Available Revolving Facility) a minimum amount of (Euro)
2,000,000 and an integral multiple of (Euro) 1,000,000 or (b) equal
to the amount of the Available Revolving Facility;
6.1.5 the proposed Term of the Revolving Advance requested is a period of
(a) one, two, three or six months or such other period as may be
agreed to by the Facility Agent acting on the instructions of all the
Banks and the EIF in each case ending on or before the Revolving
Termination Date; or (b) in relation to a Revolving Advance to be
made prior to the Conversion Date, such other period of less than one
month, if necessary to ensure that there are Revolving Advances which
have a Term ending on the Conversion Date in an aggregate amount of
less than or equal to the Conversion Available Amount, provided that
prior to the Syndication Date, only periods of one month or a period
previously approved by the Lead Arrangers may be chosen; and
6.1.6 the conditions set out in Clause 6.2 (Revolving Facility Availability
Tests) are satisfied;
6.1.7 (save in relation to a Renewed Advance) the Repeated Representations
are true in all material respects on and as of the proposed date for
the making of such Revolving Advance before and after giving effect
to such and to the application of the proceeds therefrom, as though
made on and as of such date;
6.1.8 no Event of Default or (save in relation to a Renewed Advance)
Potential Event of Default has occurred and is continuing or would
result from the making of such Revolving Advance; and
6.1.9 each Advance (including for the avoidance of doubt a Renewed
Advance) requested by a French Borrower shall also be requested
jointly by CECC and if, on the proposed date for the making of
such Advance:
(a) the Official Rate is greater than or equal to the Applicable
Interest Rate, the Advance shall be made to that French
Borrower and not to CECC; or
(b) the Official Rate is less than the Applicable Interest Rate,
(i) the Advance shall be made to CECC and not to that
French Borrower;
(ii) that French Borrower will be deemed to have requested
an amount equal to the Advance to be disbursed to it
under the Intercompany CECC Facility Agreement by CECC
on the proposed date for the making of such Advance;
(iii) CECC shall on such date be obliged to advance an
amount equal to such Advance to that French Borrower
under the Intercompany CECC Facility Agreement; and
(iv) accordingly CECC shall direct the Facility Agent to
make the Advance directly to the French Borrower in
satisfaction of its obligation under the Intercompany
CECC Facility Agreement.
then, save as otherwise provided herein, such Revolving Advance will be made
in accordance with the provisions hereof.
6.2 Revolving Facility Availability Tests
The following are the conditions for the purposes of sub-Clause 6.1.6 above.
6.2.1 The Tranche A Term Facility is fully utilised.
6.2.2 The conditions set out in Clause 3.2 (Tranche A Term Facility
Availability Tests) are satisfied in respect of each Revolving
Advance.
6.2.3 The Obligors' Agent has confirmed to the Facility Agent that the
markets of Grenoble, Nice and Toulouse are Operational in the
French Network and the remaining two markets are Operational in
the German Network; provided that in satisfaction of this
condition the Parent shall have the right to substitute up to two
different markets from those specified, where (a) such markets are
Operational; (b) that the substitute market is expected to
generate comparable EBITDA and expected to require comparable
Capital Expenditure as the original market; (c) the budget for
such market has been determined in all
material respects in accordance with the Group's past
methodologies; and (d) all Licences as necessary for that market
have been obtained.
6.2.4 The Annualised Net Revenue calculated at any time no later than 30
September 2000 is at least (Euro) 20,800,000.
6.2.5 On the date of delivery of the relevant drawdown request, and on
the proposed date for the making of the proposed Revolving Advance
where the proposed date for making of the proposed Revolving
Advance is a date:
(i) on or prior to 31 December 2000, Total Senior Debt
expressed as a percentage of the aggregate of Invested
Capital and Total Senior Debt as set out below for the
relevant Financial Quarter in which the proposed Revolving
Advance is to be made will not be exceeded, such percentage
to be calculated on the basis that the amount of Total
Senior Debt is adjusted to take account of the proposed
Revolving Advance and other changes to the Total Senior
Debt which will occur on or before the date of the proposed
Advance:
Financial Quarter ending Total Senior Debt expressed as a
percentage of the aggregate of Invested
Capital and Total Senior Debt (%)
30 June 2000 40
30 September 2000 47
31 December 2000, 31
March 2001, 30 June 2001
and 30 September 2001; or 50
(ii) on or after 1 January 2001 and on or prior to 30 September
2001 either the condition set out in sub-paragraph (i)
above is satisfied; or the ratio of Total Senior Debt to
AART as set out below for the relevant Financial Quarter in
which the proposed Revolving Advance is to be made will not
be exceeded, such ratio to be calculated: (I) on the basis
of the AART as calculated by reference to the aggregate
AART set out in the three most recently delivered monthly
management statements of the Group, or (in the event that
the most recently delivered financial statements are
quarterly financial statements) as set out in the quarterly
financial statements of the Group, in either case as
multiplied by four; and (II) on the basis that the amount
of the Total Senior Debt is adjusted to take account of the
proposed Revolving Advance and any other changes to the
Total Senior Debt which will occur on or before the date of
the proposed Advance:
Financial Quarter ending Total Senior Debt to AART
31 March 2001 2.25 : 1
30 June 2001 2.00 : 1
30 September 2001 1.75 : 1; or
(iii) on or after 1 October 2001, the Senior Debt Leverage Ratio
as set out below for the relevant Financial Quarter in
which the proposed Revolving Advance is to be made will not
be exceeded, such ratio to be calculated: (I) on the basis
of the Annualised EBITDA as calculated by reference to the
most recently delivered quarterly financial statements of
the Group; and (II) on the basis that the amount of Total
Senior Debt is adjusted to take account of the proposed
Revolving Advance and any other changes to the Total Senior
Debt which will occur on or before the date of the proposed
Advance:
Financial Quarter ending Senior Debt Leverage Ratio
31 December 2001 6.50: 1
31 March 2002 5.00:1
30 June 2002 4.50:1
30 September 2002 4.50:1
31 December 2002 3.50:1
31 March 2003 3.00:1
Thereafter, 31 March, 30 June, 30 September and 31 2.50:1
December.
6.3 Each Bank's Participation in Revolving Advances
Each Bank will participate through its Facility Office in each Revolving
Advance made pursuant to this Clause 6 in the proportion borne by its
Available Revolving Commitment to the Available Revolving Facility
immediately prior to the making of that Revolving Advance.
6.4 Reduction of Available Revolving Commitment
If a Bank's Revolving Commitment is reduced in accordance with the terms
hereof after the Facility Agent has received the Notice of Drawdown for a
Revolving Advance and such reduction was not taken into account in the
Available Revolving Facility, then the amount of that Revolving Advance
shall be reduced accordingly.
7. PAYMENT AND CALCULATION OF INTEREST ON REVOLVING ADVANCES
7.1 Payment of Interest
On the Repayment Date relating to each Revolving Advance the Borrower to
which such Revolving Advance has been made shall pay accrued interest on
that Revolving Advance.
7.2 Calculation of Interest
The rate of interest applicable to a Revolving Advance from time to time
during its Term shall be the rate per annum which is the sum of:
7.2.1 the Applicable Margin;
7.2.2 the Mandatory Cost Rate in respect thereof at such time; and
7.2.3 EURIBOR on the Quotation Date therefor.
8. CONVERSION AND WORKING CAPITAL FACILITY
8.1 Conversion Notice
The Obligors' Agent may deliver a notice to the Facility Agent specifying
the length of the Interest Period applicable to the Tranche B Term Advance
made available pursuant to Clause 8.2.2 on the Conversion Date, provided
that such notice is received by the Facility Agent no later than four
Business Days prior to the Conversion Date, and in the absence of such
notice, the Interest Period shall be three months.
8.2 Conversion and the Tranche B Term Facility
8.2.1 The Revolving Advances outstanding as at the Conversion Date in an
aggregate amount equal to the Conversion Available Amount or, if
less, the aggregate amount of all Revolving Advances outstanding
on the Conversion Date shall be converted into Tranche B Term
Advances as follows:
8.2.2 First, Revolving Advances whose Term ends on the Conversion Date
shall be automatically converted into a single Tranche B Term
Advance under the Tranche B Term Facility with an initial Interest
Period as determined in accordance with Clause 8.1 (Conversion
Notice); and
8.2.3 Secondly, Revolving Advances whose Term ends on a date falling
after the Conversion Date shall remain outstanding as Revolving
Advances until the last day of their Term when they shall be
converted in whole or in part into Tranche B Term Advances in
chronological order until such time as the aggregate amount of
Tranche B Term Advances is in an amount equal to the Conversion
Available Amount or, if less, the aggregate amount of all
Revolving Advances outstanding on the Conversion Date provided
that the first Interest Period of each such Tranche B Term Advance
(converted pursuant to this Clause 8.2.3) shall end at the same
time as the Interest Period of the outstanding Tranche B Term
Advance converted pursuant to Clause 8.2.2 (or, as the case may
be, as consolidated with previous Tranche B Term Advances
converted pursuant to this Clause 8.2.3); and
8.2.4 Thirdly, the Tranche B Revolving Facility shall be reduced to an
amount equal to the Working Capital Facility (and the Revolving
Commitment of each of the Banks shall be reduced rateably) and any
Revolving Advances (or any part thereof) not converted pursuant to
sub-clauses 8.2.2 and/or 8.2.3 shall remain outstanding under the
Working Capital Facility and shall be repaid on the Repayment Date
applicable thereto.
9. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
9.1 Market Disruption
If, in relation to any Advance:
9.1.1 EURIBOR is to be determined by reference to Reference Banks and at
or about 11.00 a.m. on the Quotation Date for the relevant
Interest Period or Term none of the Reference Banks supplies a
rate for the purpose of determining EURIBOR for the relevant
Interest Period or Term; or
9.1.2 before the close of business in Paris on the Quotation Date for
the relevant Interest Period or Term the Facility Agent has been
notified by a Bank or each of a group of Banks to whom in
aggregate more than fifty per cent. or more of such Advance is
owed (or, in the case of an undrawn Advance, if made, would be
owed) that the EURIBOR rate does not accurately reflect the cost
of funding its participation in such Advance,
then, the Facility Agent shall notify the Obligors' Agent, the relevant
Borrower and the Participants of such event and, notwithstanding anything to
the contrary in this Agreement, Clause 9.2 (Substitute Interest Period and
Interest Rate) shall apply to such Advance.
9.2 Substitute Interest Period and Interest Rate
If either sub-clause 9.1.1 or 9.1.2 of Clause 9.1 (Market Disruption)
applies to an Advance, then unless a substitute basis has been agreed in
accordance with Clause 9.3 (Alternative Rate) (i) the duration of the
relevant Interest Period or Term shall be one month or, if less, such that
it shall end on the next succeeding Term Repayment Date (in the case of a
Term Advance) or the earlier of the Conversion Date and the Revolving
Termination Date (in the case of a Revolving Advance); and (ii) the rate of
interest applicable to each Bank's portion of such Advance during the
relevant Interest Period or Term shall (subject to any agreement reached
pursuant to Clause 9.3 (Alternative Rate)) be the rate per annum which is
the sum of:
9.2.1 the Applicable Margin;
9.2.2 the Mandatory Cost Rate in respect thereof at such time; and
9.2.3 the rate per annum notified to the Facility Agent by such Bank
before the last day of such Interest Period or Term to be that
which expresses as a percentage rate per annum the cost to such
Bank of funding from whatever sources it may
reasonably select its portion of such Advance during such Interest
Period or Term.
9.3 Alternative Rate
If (a) either of those events mentioned in sub-clauses 9.1.1 and 9.1.2 of
Clause 9.1 (Market Disruption) occurs in relation to an Advance or (b) by
reason of circumstances affecting the European interbank market during any
period of three consecutive Business Days EURIBOR is not available for euro
to prime banks in the European interbank market, then if the Facility Agent
or the Obligors' Agent so requires, the Facility Agent and the Obligors'
Agent shall enter into negotiations in good faith with a view to agreeing a
substitute basis (i) for determining the rates of interest from time to
time applicable to the Advances and/or (ii) upon which the Advances may be
maintained (whether in euro or some other currency) thereafter and any such
substitute basis that is agreed shall take effect in accordance with its
terms and be binding on each party hereto, provided that the Facility Agent
may not agree any such substitute basis without the prior consent of each
Bank and the EIF.
10. NOTIFICATION
10.1 Advances
Not less than three Business Days before the first day of an Interest
Period or Term, the Facility Agent shall notify each Participant of the
Facility that is to be utilised, the name of the relevant Borrower, the
proposed amount of the relevant Advance, the proposed length of the
relevant Interest Period or Term and the aggregate principal amount of the
relevant Advance allocated to such Bank pursuant to Clause 3.3 (Each Bank's
Participation in Tranche A Term Advances) or Clause 6.3 (Each Bank's
Participation in Revolving Advances) and, in the case of the EIF, the share
of the relevant Advance in relation to which it is liable under the
Participation Agreement.
10.2 Interest Rate Determination
The Facility Agent shall promptly notify the relevant Borrower and the
Participants of each determination of EURIBOR, the Mandatory Cost Rate and
the Applicable Margin.
10.3 Changes to Advances or Interest Rates
The Facility Agent shall promptly notify the relevant Borrower and the
Participants of any change to (a) the proposed length of an Interest Period
or Term or (b) any interest rate occasioned by the operation of Clause 9
(Market Disruption and Alternative Interest Rates).
11. REPAYMENT OF THE TERM fACILITIES
11.1 Term Repayment Instalments
The Parent shall procure (and each Borrower which has drawn a Term Advance
shall repay its share of each Term Loan in order to ensure) that each Term
Loan is repaid in instalments on each Term Repayment Date set out in the
table below. The amount to be repaid shall:
(a) in the case of the Tranche A Term Loan, be equal to the relevant
percentage of the Tranche A Term Loan outstanding as at the last day
of the Tranche A Term Availability Period; and
(b) in the case of the Tranche B Term Loan, be equal to the relevant
percentage of the Converted Amount,
in each case, as set out in the table below.
Term Repayment Date Percentage of Tranche A Term Loan and Tranche
B Term Loan (%) as at the relevant date
30 June 2003 10
31 December 2003 10
30 June 2004 12.5
31 December 2004 12.5
30 June 2005 12.5
31 December 2005 12.5
30 June 2006 15
31 December 2006 15
11.2 Selection of Term Advances
In relation to a Term Repayment Date, the repayment shall firstly comprise
Term Advances whose Interest Periods end on such Term Repayment Date, as
selected by the Obligors' Agent by not less than four Business Days' notice
to the Facility Agent, provided that if the Obligors' Agent fails to give
such notice, the Facility Agent shall select the Term Advances to be wholly
or partially repaid.
12. REPAYMENT OF THE REVOLVING FACILITY
Each Borrower to which a Revolving Advance has been made shall repay the
Revolving Advance made to it in full on the Repayment Date relating
thereto.
13. CANCELLATION AND PREPAYMENT
13.1 Cancellation of the Term Facility
The Obligors' Agent may (subject to the provisions of this Clause), by
giving to the Facility Agent not less than ten Business Days' prior notice
to that effect, cancel the whole or any part (being a minimum amount of
(Euro) 5,000,000 and an integral multiple of (Euro) 1,000,000) of the
Available Tranche A Term Facility provided that such amount shall be
applied pro rata in cancellation of the Available Tranche A Term Facility
and the Available Revolving Facility on such date. Any such cancellation
shall reduce the Available Tranche A Term Commitments and, as the case may
be, the Available Revolving Commitments of the Banks rateably.
13.2 Prepayment of the Term Loans
Subject to Clause 13.6 (Pro-rata Requirement), the Borrower to which a Term
Advance has been made may, if it has given to the Facility Agent not less
than ten Business Days' prior notice to that effect through the Obligors'
Agent, prepay the whole of any Term Advance or any part of any Term Advance
(being a minimum
amount of (Euro) 5,000,000 and an integral multiple of (Euro) 1,000,000).
Any prepayment so made after the last day of the Tranche A Term
Availability Period shall satisfy pro tanto the obligations under Clause
11.1 (Term Repayment Instalments) in inverse chronological order.
13.3 Cancellation of the Revolving Facility
Subject to Clause 13.6 (Pro-rata Requirement), the Obligors' Agent may, by
giving to the Facility Agent not less than ten Business Days' prior notice
to that effect, cancel the whole or any part (being a minimum amount of
(Euro) 5,000,000 and an integral multiple of (Euro) 1,000,000) of the
Available Revolving Facility. Any such cancellation shall reduce the
Available Revolving Commitments of the Banks rateably.
13.4 Prepayment of the Revolving Loan
Subject to Clause 13.6 (Pro-rata Requirement), the Borrower to which a
Revolving Advance has been made may, by giving to the Facility Agent
through the Obligors' Agent not less than ten Business Days prior notice to
that effect, prepay the whole or any part of a Revolving Advance (being an
amount such that such Revolving Advance will be reduced by a minimum amount
of (Euro) 5,000,000 and an integral multiple of (Euro) 1,000,000).
13.5 Notice of Cancellation or Prepayment
Any notice of cancellation or prepayment given by a Borrower pursuant to
this Clause 13 shall be irrevocable, shall specify the date upon which such
cancellation or prepayment is to be made and the amount of such
cancellation or prepayment and, in the case of a notice of prepayment,
shall oblige the relevant Borrower to make such prepayment on such date.
13.6 Pro-rata Requirement
The Parent shall ensure that on the date of any prepayment of the Tranche A
Term Loan, or as the case may be the Tranche B Term Loan, in accordance
with Clause 13.2 (Prepayment of the Term Loans):
13.6.1 if such date is prior to the Conversion Date,
(a) the Revolving Commitments of the Banks shall be cancelled pro-
rata by an amount in accordance with Clause 13.3 (Cancellation
of the Revolving Facility); or
(b) in the event that such Commitments are, or are reduced to,
zero, the Revolving Loan shall be prepaid and thereupon the
Revolving Commitments of the Banks shall be cancelled in an
equal or remaining amount in accordance with Clause 13.3
(Cancellation of the Revolving Facility) and/or Clause 13.4
(Prepayment of the Revolving Loan);
in each case such amount (the "Revolving Amount") shall be such
that the ratio of the amount to be applied in prepayment of the
Term Loan to the Revolving Amount is equal to the ratio of the
Tranche A Term Facility to the Tranche B Term Facility; and
13.6.2 if such date is on or after the Conversion Date, the other Term
Loan shall be prepaid in accordance with Clause 13.2 (Prepayment
of the Term Loans) in an amount such that the ratio of the two
amounts to be prepaid is equal to the ratio, as applicable, of the
Tranche A Term Loan to the Tranche B Term Loan at that time.
13.7 Repayment of a Bank's Share of the Loan
If:
13.7.1 any sum payable to any Participant by an Obligor is required to be
increased pursuant to Clause 15.1 (Tax Gross-up) or Clause 15.3
(EIF Taxes); or
13.7.2 any Participant claims indemnification from the Parent under
Clause 15.2 (Tax Indemnity) or Clause 17.1 (Increased Costs); or
13.7.3 any Bank does not agree a substitute basis under Clause 9.3
(Alternative Rate), the Obligors' Agent may, whilst such
circumstance continues, give the Facility Agent at least ten
Business Days notice (which notice shall be irrevocable) of its
intention to:
(i) where sub-clauses 13.7.1, 13.7.2 or 13.7.3 relate to the
whole of a Bank's participation in the Facilities, to
procure the repayment of such Bank's share of the Loan; or
(ii) where sub-clauses 13.7.1 or 13.7.2 relate only to the EIF's
Participated Portion of a Bank's share of the Facilities,
to procure the repayment of such Participated Portion of
such Bank's share of the Loan.
On the last day of each current Interest Period or Term each Borrower to
which an Advance has been made shall repay such Bank's portion or, as the
case may be, such Participated Portion of the Advance to which such
Interest Period or Term relates. Any repayment of a Term Advance so made
after the last day of the Term Availability Period shall reduce rateably
the remaining obligations under Clause 11.1 (Term Repayment Instalments).
13.8 No Further Advances
A Bank for whose account a repayment is to be made under Clause 13.7
(Repayment of a Bank's Share of the Loan) shall not be obliged to
participate, in the case of a repayment to be made under paragraph (i) of
Clause 13.7 (Repayment of a Bank's Share of the Loan), in the making of
Advances or, in the case of a repayment to be made under paragraph (ii) of
Clause 13.7 (Repayment of a Bank's Share of the Loan), in the making of
such share of Advances relating to such Participated Portion on or after
the date upon which the Facility Agent receives the Obligors' Agent's
notice of its intention to procure the repayment of such Bank's share of
the Loan or, as the case may be, such Participated Portion of such Bank's
share of the Loan, and such Bank's Available Tranche A Term Commitment and
Available Revolving Commitment or, as the case may be, such Participated
Portion of such Bank's Available Tranche A Term Commitment and Available
Revolving Commitment shall be reduced to zero.
13.9 No Other Repayments
The Borrowers shall not repay all or any part of the Loan except at the
times and in the manner expressly provided for in this Agreement.
13.10 No Reborrowing of the Term Facilities
None of the Borrowers shall be entitled to reborrow any amount of the Term
Facilities which is repaid.
14. Mandatory Prepayment
14.1 Excess Cash Flow
With respect to each immediately preceding financial year of the Parent,
commencing with the financial year ending on 31 December 2001, the Parent
shall on the Business Day immediately succeeding the date on which the
consolidated financial statements for such financial year are delivered by
the Parent pursuant to the provisions of Clause 21.1 (Annual Statements)
or should have been delivered in accordance with the provisions thereof,
apply 50 per cent. of Excess Cash Flow for such financial year in
prepayment of the Loan in accordance with Clause 14.4 (Application of
Prepayments).
14.2 Asset Disposals and Insurance Proceeds
The Parent shall procure that an amount equal to 100 per cent. of:
(a) the Net Cash Proceeds of any disposal, lease or transfer of any asset
of any member of the Group (other than a Permitted Disposal); and
(b) the proceeds of any insurance claims other than those payable to a
third party,
in each case to the extent that such proceeds are not applied in or
towards the carrying on of the Telecoms Business as permitted by this
Agreement within 180 days of receipt of such proceeds, shall promptly be
applied in prepayment of the Loan in accordance with Clause 14.4
(Application of Prepayments).
14.3 Change of Control
14.3.1 The Parent shall (itself or through the Obligors' Agent), promptly
upon it becoming aware that a change of control has occurred, or
will or is reasonably likely to occur, give written notice thereof
to the Participants (through the Facility Agent).
14.3.2 Upon the occurrence of a change of control, the Borrowers shall
immediately repay in full the Term Loans and Revolving Loan
outstanding at such time and all other amounts owing hereunder and
the Commitments of the Banks shall be irrevocably cancelled.
14.4 Application of Prepayments
14.4.1 Any prepayment made under Clause 14.1 (Excess Cash Flow) or Clause
14.2 (Asset Disposals and Insurance Proceeds) shall be applied:
(a) if such date is prior to the Conversion Date:
(i) against the Tranche A Term Loan; and
(ii) by a cancellation of the Revolving Commitments of the
Banks pro-rata; or in the event that at such time such
Commitments are, or are reduced to, zero, the
Revolving Loan shall be prepaid and thereupon the
Revolving Commitments of the Banks shall be cancelled;
in the ratio that the Tranche A Term Facility bears to the
Tranche B Term Facility; and
(b) if such date is on or after the Conversion Date, against the
Tranche A Term Loan and the Tranche B Term Loan in the ratio
that the Tranche A Term Loan bears to the Tranche B Term Loan
at that time; provided that if on such date the Term Loans
have been prepaid in full, shall be applied in cancellation
of the Revolving Commitments of the Banks pro-rata and then
in repayment and cancellation of the Revolving Loan and the
Revolving Commitments of the Banks pro-rata.
14.4.2 Any prepayment of Term Loans shall satisfy the remaining
obligations under Clause 11.1 (Term Repayment Instalments) in
inverse chronological order.
14.5 Prepayment Account
If Clause 13.6 (Pro-rata Requirement), Clause 14.1 (Excess Cash Flow) or
Clause 14.2 (Asset Disposals and Insurance Proceeds) would require the
Parent to procure the prepayment of any Advance otherwise than at the end
of an Interest Period or Term, the Parent can elect (by written notice to
the Facility Agent to be received no later than one Business Day prior to
the date on which the prepayment obligation would, but for this Clause
14.5, arise) to credit such amount to the Prepayment Account on the date on
which the prepayment obligation but for this Clause 14.5 would arise and to
prepay the Term Advance and/or Revolving Advance at the first occurring end
of an Interest Period relative to the Term Advance to be repaid or date on
which a Revolving Advance matures. Following any such election and provided
the required payment is made to the Prepayment Account, the obligation to
prepay the relevant Term Advance and/or Revolving Advance will not arise
until the first occurring end of an Interest Period relative to the Term
Advance to be repaid or date on which a Revolving Advance matures (and for
the avoidance of doubt interest shall continue to accrue on such Advances
until the end of the applicable Interest Period or Term). The Obligors'
Agent on behalf of the Parent and the other Obligors hereby authorises the
Facility Agent to withdraw monies from the Prepayment Account and apply
such monies against prepayments which are due to be made hereunder, or upon
the occurrence of an Event of Default in respect of which a notice has been
given pursuant to Clause 24.19 (Acceleration and Cancellation) against
amounts due and payable under the Finance Documents. Following the
satisfaction of the obligations pursuant to this Clause 14.5 with respect
to any deposit made to the Prepayment Account, any interest accrued on such
deposit shall be paid to the Obligors' Agent, provided that at such time no
Event of Default has occurred and is continuing in which case such interest
shall not be paid
to the Obligors' Agent but the Obligors' Agent may direct the Facility
Agent to apply such interest in satisfaction of the interest which has
accrued in relation to the outstanding Advances.
15. TAXES
15.1 Tax Gross-up
All payments to be made by an Obligor to any Finance Party or the EIF under
the Finance Documents shall be made free and clear of and without deduction
for or on account of tax. If any Obligor is required to make such a payment
subject to the deduction or withholding of tax, the sum payable by such
Obligor (in respect of which such deduction or withholding is required to
be made) shall be increased to the extent necessary to ensure that such
Finance Party or, as the case may be, the EIF receives a sum net of any
deduction or withholding equal to the sum which it would have received had
no such deduction or withholding been made or required to be made.
15.2 Tax Indemnity
Without prejudice to Clause 15.1 (Tax Gross-up), if any Finance Party or
the EIF is required to make any payment of or on account of tax on or in
relation to any sum received or receivable under the Finance Documents
(including any sum deemed for purposes of tax to be received or receivable
by such Finance Party or, as the case may be, the EIF whether or not
actually received or receivable) or if any liability in respect of any such
payment is asserted, imposed, levied or assessed against any Finance Party
or the EIF, the Parent shall, upon demand of the Facility Agent and
delivery of a written explanation of the nature of the tax due or paid by
such Finance Party or, as the case may be, the EIF, promptly indemnify the
Finance Party or, as the case may be, the EIF which suffers a loss or
liability as a result against such payment or liability, together with any
interest, penalties, costs and expenses payable or incurred in connection
therewith, other than any such interest, penalties, costs or expenses
arising as a result of a failure by the Finance Party or, as the case may
be, the EIF to make payment of tax when, to the best of its knowledge and
belief, it was due provided that this Clause 15.2 shall not apply to:
15.2.1 any tax imposed on and calculated by reference to the net income
actually received or receivable by such Finance Party or, as the
case may be, the EIF (but, for the avoidance of doubt, not
including any sum deemed for purposes of tax to be received or
receivable by such Finance Party or, as the case may be, the EIF
but not actually receivable) by the jurisdiction in which such
Finance Party or, as the case may be, the EIF is incorporated or
any jurisdiction or jurisdictions in which such Finance Party or,
as the case may be, the EIF is resident for the purpose of
assessing such tax; or
15.2.2 any tax imposed on and calculated by reference to the net income
of the Facility Office of such Finance Party or, as the case may
be, the EIF actually received or receivable by such Finance Party
or, as the case may be, the EIF (but, for the avoidance of doubt,
not including any sum deemed for purposes of tax to be received or
receivable by such Finance Party or, as the case may
be, the EIF but not actually receivable) by the jurisdiction in
which its Facility Office is located.
15.3 EIF Taxes
If:
15.3.1 a Participating Lender (or the Facility Agent on its behalf) is
required to make any deduction or withholding of tax from any sum
payable by it to the EIF under the Participation Agreement; or
15.3.2 the EIF (or the Facility Agent on its behalf) is required to make
any payment of or on account of tax on or in relation to any sum
received or receivable under the Participation Agreement
(including any sum deemed for purposes of tax to be received or
receivable by the EIF whether or not actually received or
receivable) or if any liability in respect of any such payment is
asserted, imposed, levied or assessed against the EIF (other than
as set out in sub-clauses 15.2.1 and 15.2.2 of Clause 15.2 (Tax
Indemnity) to the extent such sub-clauses apply to the EIF),
the Obligors shall, upon demand of the Facility Agent and delivery of a
written explanation of the nature of the tax due or paid, promptly pay to
such Participating Lender such amount as may be necessary to ensure that
upon payment by such Participating Lender to the EIF under the
Participation Agreement, the EIF will actually have received, in aggregate,
a net amount equal to the full amount which it would have received had such
sum not been made subject to such deduction, withholding, payment or
liability.
15.4 Claims by Participants
A Participant intending to make a claim or, in the case of the EIF, to
request a Participating Lender to make a claim pursuant to Clause 15.2 (Tax
Indemnity) or Clause 15.3. (EIF Taxes) shall notify the Facility Agent of
the event giving rise to the claim, whereupon the Facility Agent shall
notify the Obligors' Agent thereof.
15.5 Qualifying Banks
Each Bank warrants that it is a Qualifying Bank as at the date it becomes a
party to this Agreement.
16. TAX RECEIPTS
16.1 Notification of Requirement to Deduct Tax
If, at any time, an Obligor is required by law to make any deduction or
withholding from any sum payable by it under the Finance Documents (or if
thereafter there is any change in the rates at which or the manner in which
such deductions or withholdings are calculated), such Obligor shall
promptly notify the Facility Agent.
16.2 Evidence of Payment of Tax
If an Obligor makes any payment under the Finance Documents in respect of
which it is required to make any deduction or withholding, it shall pay the
full amount required
to be deducted or withheld to the relevant taxation or other authority
within the time allowed for such payment under applicable law and shall
deliver to the Facility Agent for each Participant, within thirty days of
issue thereof, an original receipt (or a certified copy thereof) issued by
such authority evidencing the payment to such authority of all amounts so
required to be deducted or withheld in respect of that Participant's share
of such payment.
16.3 Tax Credit Payment
If an additional payment is made under Clause 15 (Taxes) by an Obligor for
the benefit of any Finance Party or the EIF and such Finance Party or, as
the case may be, the EIF, in its sole discretion acting in good faith,
determines that it has obtained (and has derived full use and benefit from)
a credit against, a relief or remission for, or repayment of, any tax,
then, if and to the extent that such Finance Party or, as the case may be,
the EIF, in its sole opinion acting in good faith, determines that:
16.3.1 such credit, relief, remission or repayment is in respect of or
calculated with reference to the additional payment made pursuant
to Clause 15 (Taxes); and
16.3.2 its tax affairs for its tax year in respect of which such credit,
relief, remission or repayment was obtained have been finally
settled,
such Finance Party or, as the case may be, the EIF shall, to the extent
that it can do so without prejudice to the retention of the amount of such
credit, relief, remission or repayment, pay to such Obligor such amount as
such Finance Party or, as the case may be, the EIF shall, in its sole
opinion acting in good faith, determine to be the amount which will leave
such Finance Party or, as the case may be, the EIF (after such payment) in
no worse after-tax position than it would have been in had the additional
payment in question not been required to be made by such Obligor.
16.4 Tax Credit Clawback
If any Finance Party or the EIF makes any payment to an Obligor pursuant to
Clause 16.3 (Tax Credit Payment) and such Finance Party or, as the case may
be, the EIF subsequently determines, in its sole opinion acting in good
faith, that the credit, relief, remission or repayment in respect of which
such payment was made was not available or has been withdrawn or that it
was unable to use such credit, relief, remission or repayment in full, such
Obligor shall reimburse such Finance Party or, as the case may be, the EIF
such amount as such Finance Party or, as the case may be, the EIF
determines, in its sole opinion acting in good faith, is necessary to place
it in the same after-tax position as it would have been in if such credit,
relief, remission or repayment had been obtained and fully used and
retained by such Finance Party or, as the case may be, the EIF.
16.5 Tax and Other Affairs
No provision of this Agreement shall interfere with the right of any
Finance Party or the EIF to arrange its tax or any other affairs in
whatever manner it thinks fit, oblige any Finance Party or the EIF to claim
any credit, relief,
remission or repayment in respect of any payment under Clause 15 (Taxes) in
priority to any other credit, relief, remission or repayment available to
it except that the Finance Party's or, as the case may be, the EIF's sole
reason (acting in good faith) for claiming such credit, relief, remission
or repayment shall not be its obligation to make a tax credit payment under
Clause 16.3 (Tax Credit Payment) nor oblige any Finance Party or the EIF to
disclose any information relating to its tax or other affairs or any
computations in respect thereof.
17. INCREASED COSTS
17.1 Increased Costs
If, by reason of (a) any change in law or in its interpretation or
administration and/or (b) compliance with any request or requirement (with
which banks generally habitually comply) relating to the maintenance of
capital or any other request from or requirement of any central bank or
other fiscal, monetary, regulatory or other authority:
17.1.1 a Bank or any holding company of such Bank or the EIF is unable to
obtain the rate of return on its capital which it would have been
able to obtain but for such Bank's or, as the case may be, the
EIF's entering into or assuming or maintaining a commitment or
participation or performing its obligations under the Finance
Documents or the Participation Agreement;
17.1.2 a Bank or any holding company of such Bank or the EIF incurs a
cost as a result of such Bank's or, as the case may be, the EIF's
entering into or assuming or maintaining a commitment or
participation or performing its obligations under the Finance
Documents or the Participation Agreement; or
17.1.3 there is any increase in the cost to a Bank or any holding company
of such Bank or the EIF of funding or maintaining or participating
in such Bank's or, as the case may be, the EIF's share of the
Advances or any Unpaid Sum,
then the Parent shall, from time to time on demand of the Facility Agent,
promptly pay to the Facility Agent for the account of that Bank or, as the
case may be, the EIF amounts sufficient to indemnify that Bank or the EIF
or to enable that Bank to indemnify its holding company from and against,
as the case may be, (i) such reduction in the rate of return of capital,
(ii) such cost or (iii) such increased cost. Any demand shall be
accompanied by particulars (in reasonable detail) of the circumstances
giving rise to the demand and a calculation (in reasonable detail) of the
amount demanded.
17.2 Increased Costs Claims
A Participant intending to make a claim pursuant to Clause 17.1 (Increased
Costs) shall notify the Facility Agent of the event giving rise to such
claim, whereupon the Facility Agent shall notify the Obligors' Agent
thereof.
17.3 Exclusions
Notwithstanding the foregoing provisions of this Clause 17, no Participant
shall be entitled to make any claim under this Clause 17 in respect of any
cost, increased cost or liability (a) compensated by Clause 15 (Taxes); (b)
included within the Mandatory Cost Rate; (c) attributable to any tax or
change in the rate of tax on the overall net
income of a Bank or the holding company of such Bank or the EIF (or the
overall net income of a division or branch of such Bank or the holding
company of such Bank or the EIF); (d) attributable to a law or regulation
which at the date of this Agreement is scheduled to be implemented after
the date of this Agreement; (e) attributable to the period commencing 90
days after the Facility Office of the relevant Bank or the holding company
of such Bank or the EIF becomes aware of the increased cost to the date
that any claim is made under Clause 17.2 (Increased Costs Claims) where
such claim is made after such 90 day period; or (f) attributable solely to
the gross negligence or wilful misconduct of the relevant Bank or the
holding company of such Bank or the EIF.
18. ILLEGALITY
18.1 Bank Illegality
If, at any time, it is or will become unlawful for a Bank to make, fund or
allow to remain outstanding all or part of its share of the Advances, then
that Bank shall, promptly after becoming aware of the same, deliver to the
Obligors' Agent through the Facility Agent a notice to that effect and:
18.1.1 such Bank shall not thereafter be obliged to participate in the
making of any Advances and the amount of its Available Tranche A
Term Commitment and Available Revolving Commitment shall be
immediately reduced to zero; and
18.1.2 if the Facility Agent on behalf of such Bank so requires, the
Parent shall procure that each Borrower which has drawn an Advance
shall on such date as the Facility Agent shall have specified
(being not earlier than the latest date permitted by law) repay
such Bank's share of any outstanding Advances together with
accrued interest thereon and all other amounts owing to such Bank
under the Finance Documents and any repayment of Term Advances so
made after the last day of the Trance A Availability Period shall
reduce rateably the remaining obligations under Clause 11.1 (Term
Repayment Instalments).
18.2 EIF Illegality
If, at any time, it is or will become unlawful for the EIF to allow to
remain outstanding, maintain or perform its obligations under the
Participation Agreement, then the EIF shall, promptly upon becoming aware
of the same, deliver to the Obligors' Agent and each Participating Lender
through the Facility Agent a notice to that effect and:
18.2.1 an amount of the Available Tranche A Term Commitment and Available
Revolving Commitment of each Participating Lender equal to the
EIF's Participated Portion shall be cancelled; and
18.2.2 if the Facility Agent on behalf of the EIF so requires, the Parent
shall procure that each Borrower which has drawn an Advance shall
on such date as the Facility Agent shall have specified (being not
earlier than the latest date
permitted by law) repay the EIF's Participated Portion of each
Participating Lender's share of any outstanding Advances together with
accrued interest thereon and all other amounts owing to such Participating
Lender in respect of such Participated Portion under the Finance Documents
and any repayment of Term Advances so made after the last day of the
Tranche A Availability Period shall reduce rateably the remaining
obligations under Clause 11.1 (Term Repayment Instalments).
19. MITIGATION
If, in respect of any Participant, circumstances arise which would or would
upon the giving of notice result in:
19.1.1 an increase in any sum payable to it or for its account pursuant
to Clause 15.1 (Tax Gross-up) or Clause 15.3 (EIF Taxes);
19.1.2 a claim for indemnification pursuant to Clause 15.2 (Tax
Indemnity) or Clause 17.1 (Increased Costs); or
19.1.3 the reduction of its Available Commitment to zero or, in relation
to the EIF, the cancellation of an amount of the Available
Commitment of each Participating Lender equal to the EIF's
Participated Portion or any repayment to be made pursuant to
Clause 18 (Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Participant or the obligations of the Obligors under any of
the Clauses referred to above, such Participant shall promptly upon
becoming aware of such circumstances notify the Facility Agent and, in the
case of the EIF, each Participating Lender thereof and, in consultation
with the Facility Agent and the Obligors' Agent and, in the case of the
EIF, each Participating Lender and to the extent that it can do so lawfully
and without prejudice to its own position, take reasonable steps (including
a change of location of its Facility Office or, in the case of a Bank, the
transfer of its rights, benefits and obligations under the Finance
Documents or, in the case of the EIF, the transfer of the rights, benefits
and obligations of each Participating Lender under the Finance Documents in
respect of each such Participating Lender's Participated Portion, together
with a corresponding release of the Participation Agreement, in each case
to another financial institution acceptable to the Obligors' Agent and
willing to participate in the Facilities) to mitigate the effects of such
circumstances, provided that such Participant shall be under no obligation
to take any such action if, in the opinion of such Participant (acting
reasonably), to do so might have any adverse effect upon its business,
operations or financial condition (other than any minor costs and expenses
of an administrative nature).
20. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in Clause
20.1 (Status) to Clause 20.28 (Business, Business Plan, Reports). The
Original Obligors acknowledge that the Finance Parties and the EIF have
entered into this Agreement in
reliance on those representations and warranties. The representations and
warranties shall be qualified to the extent set out in the disclosure
letter from the Obligors' Agent to the Facility Agent dated the same date
as this Agreement.
20.1 Status
It is a corporation duly organised or incorporated under the laws of its
jurisdiction of incorporation.
20.2 Governing Law and Judgments
In any proceedings taken in its jurisdiction of incorporation in relation
to the Credit Facility Documents, the choice of English law as the
governing law of the Credit Facility Documents expressed to be governed by
English law and any judgment obtained in England in relation to any such
Credit Facility Document will be recognised and enforced, subject to the
qualifications contained in the legal opinions referred to in Schedule 3
(Conditions Precedent) or in Schedule 1 to the Amendment Agreement.
20.3 Binding Obligations
The obligations expressed to be assumed by it in the Credit Facility
Documents are legal and valid obligations binding on it and enforceable
against it in accordance with the terms thereof subject to the
qualifications contained in the legal opinions referred to in Schedule 3
(Conditions Precedent) or in Schedule 1 to the Amendment Agreement and
mandatory provisions of law affecting creditors rights generally.
20.4 Execution of the Finance Documents
Its execution of the Credit Facility Documents and its exercise of its
rights and performance of its obligations thereunder do not and will not:
20.4.1 conflict in any material respect with any agreement, mortgage,
bond or other instrument or treaty to which it is a party or which
is binding upon it or any of its assets;
20.4.2 conflict with its constitutive documents; or
20.4.3 conflict in any material respect with any applicable law.
It has the power to enter into the Credit Facility Documents and all
corporate action required to authorise the execution of the Credit Facility
Documents and the performance of its obligations thereunder has been duly
taken.
20.5 No Material Proceedings
No action or administrative proceeding of or before any court or agency
including, without limitation, the Regulatory Authorities has been started
or threatened against it which is reasonably likely to have a Material
Adverse Effect.
20.6 Audited Financial Statements
In the case of the most recent audited annual consolidated financial
statements of the Parent delivered in accordance with Clause 21.1 (Annual
Statements) they:
20.6.1 were prepared in accordance with US GAAP consistently applied;
20.6.2 disclose all liabilities (contingent or otherwise) and all
unrealised or anticipated losses of any member of the Group
required to be disclosed in accordance with US GAAP; and
20.6.3 save as disclosed therein, fairly present in all material
respects the financial condition and operations of the Group
during the relevant financial year.
20.7 No Material Adverse Change
Since the date of the Original Financial Statements, there has been no
Material Adverse Change.
20.8 Validity and Admissibility in Evidence
All acts, conditions and things required to be done, fulfilled and
performed by it in order (a) to enable it lawfully to enter into, exercise
its rights under and perform and comply with the obligations expressed to
be assumed by it in the Credit Facility Documents, (b) to ensure that the
obligations expressed to be assumed by it in the Credit Facility Documents
are legal, valid, binding and enforceable and (c) to make the Credit
Facility Documents admissible in evidence in its jurisdiction of
incorporation have been done, fulfilled and performed subject in the case
of (a), (b) and (c) above to the qualifications contained in the legal
opinions referred to in Schedule 3 (Conditions Precedent) and mandatory
provisions of law affecting creditors rights generally.
20.9 Claims Pari Passu
Under the laws of its jurisdiction of incorporation in force at the date
hereof, the claims of the Finance Parties against it under the Credit
Facility Documents will rank at least pari passu with the claims of all
its other unsecured and unsubordinated creditors save those whose claims
are mandatorily preferred solely by any bankruptcy, insolvency,
liquidation or other similar laws of general application.
20.10 No Filing or Stamp Taxes
Under the laws of its jurisdiction of incorporation in force at the date
hereof, it is not necessary that the Credit Facility Documents be filed,
recorded or enrolled with any court or other authority in such
jurisdiction (other than Security Documents which by their terms are
required to be filed and/or registered) or that any stamp, registration or
similar tax be paid (other than stamp, registration and similar taxes as
are specified herein or in the Security Documents) on or in relation to
the Credit Facility Documents subject to the qualifications contained in
the legal opinions referred to in Schedule 3 (Conditions Precedent).
20.11 No Deduction or Withholding
Under the laws of its jurisdiction of incorporation in force at the date
hereof, it will not be required to make any deduction or withholding from
any payment it may make under the Finance Documents subject to the
qualifications contained in the legal opinions referred to in Schedule 3
(Conditions Precedent) but excluding for these
purposes the qualification contained in paragraph 8(viii) of the legal
opinion issued by Xxxxxxxx Chance Punder.
20.12 No Winding-up
Neither the Parent nor any Material Subsidiary has taken any corporate
action nor have any other steps been taken or legal proceedings been
started or (to the best of its knowledge and belief) threatened against
the Parent or any Material Subsidiary for its winding-up, dissolution,
administration or re-organisation (whether by voluntary arrangement,
scheme of arrangement or otherwise) or for the appointment of a receiver,
administrator, administrative receiver, conservator, custodian, trustee or
similar officer of it or of any or all of its assets or revenues.
20.13 No Material Defaults
No member of the Group is in breach of or in default under any Material
Agreement to which it is a party or which is binding on it or any of its
assets to an extent or in a manner which is reasonably likely to have a
Material Adverse Effect.
20.14 Information Memorandum
As of the date of the Information Memorandum (i) the factual information
contained in the Information Memorandum relating to the Group and any
written factual information relating to the Group supplied on or after the
date of the Information Memorandum by the Obligors to the Facility Agent
and identified specifically as supplemental to the Information Memorandum,
taken as a whole, is true, complete and accurate in all material respects;
(ii) to the best of the Obligors' knowledge and belief, nothing has been
omitted that would make any material factual information relating to the
Group contained in the Information Memorandum untrue or misleading in any
material respect in light of the circumstances under which it was made;
and (iii) all forecasts made by the Obligors in relation to the Group are
believed by the Obligors to be reasonable, and the financial projections
contained therein have been prepared in good faith on the basis of
assumptions which the Obligors believed were reasonable as of the date of
such projections.
20.15 Environmental Compliance
Each member of the Group has duly performed and observed in all material
respects all Environmental Law, Environmental Permits and all other
material covenants, conditions, restrictions or agreements directly or
indirectly concerned with any contamination, pollution or waste or the
release or discharge of any toxic or hazardous substance in connection
with any real property which is or was at any time owned, leased or
occupied by any member of the Group or on which any member of the Group
has conducted any activity where failure to do so might reasonably be
expected to have a Material Adverse Effect.
20.16 Environmental Claims
No Environmental Claim has been commenced or (to the best of its knowledge
and belief) is threatened against any member of the Group where such claim
is reasonably likely to be determined against such member of the Group and
would be reasonably likely, if so determined, to have a Material Adverse
Effect.
20.17 Encumbrances
Save for Permitted Encumbrances, no Encumbrance exists over all or any of
the present or future revenues or assets of any member of the Group.
20.18 Ownership of the Obligors
Each of the Obligors (other than the Parent) is a wholly-owned subsidiary
of the Parent.
20.19 Ownership of the Parent
The Original Shareholders are indirect shareholders in the Parent in the
proportions set out in Schedule 7 (Original Shareholders).
20.20 Licences and Necessary Authorisations
20.20.1 It (a) has obtained the Licences and, to the extent failure to
obtain might reasonably be expected to have a Material Adverse
Effect, any Necessary Authorisations, and (b) at all times, has
not violated, has complied with, and is in compliance with each
Relevant Law, the Licences and the terms of any Necessary
Authorisations to the extent any such violation or non-compliance
would not reasonably be expected to have a Material Adverse
Effect.
20.20.2 There are no facts or circumstances of which it is aware which
would be reasonably likely to result in such Licences or any
Necessary Authorisations being revoked, suspended, amended,
varied, withdrawn or not renewed in a manner that might reasonably
be expected to have a Material Adverse Effect.
20.20.3 So far as it is aware, none of the Licences or any Necessary
Authorisations are the subject of any pending or threatened
proceedings or revocation to the extent such proceedings or
revocation might reasonably be expected to have a Material Adverse
Effect.
20.21 Security Interest
20.21.1 There is no security interest over any of its assets ranking in
priority ahead, or having equal ranking, with the security
specified in any of the Security Documents (other than pursuant to
paragraph (a) of the definition of "Permitted Encumbrances").
20.21.2 The shares of any Group member which are subject to an Encumbrance
under the Security Documents are fully paid and not subject to any
option to purchase or similar rights and the constitutional
documents of any such Group member do not restrict or inhibit
(whether absolutely, partly, under a discretionary power or
otherwise) any transfer of such shares pursuant to enforcement of
the Security Documents.
20.22 Intellectual Property
It is not aware of any adverse circumstance relating to validity,
subsistence or use of any of its Intellectual Property which could
reasonably be expected to have a Material Adverse Effect.
20.23 Information Management
The Group at all times maintains an integrated enterprise wide information
management system save to the extent that failure to do so would not
reasonably be expected to have a Material Adverse Effect.
20.24 Good Title to Assets
It has good title to or valid leases of or other appropriate licence,
authorisation or consent to use its assets necessary to carry on its
business as presently conducted.
20.25 Year 2000
20.25.1 It believes that all Computer Systems used, owned or operated by
any member of the Group are Year 2000 Compliant or, if not Year
2000 Compliant, such failure would not reasonably be expected to
have a Material Adverse Effect.
20.25.2 Each of the Group's suppliers (which are of material importance to
the business and operations of the Group) has represented to the
Group that the Computer Systems supplied by it to the Group are
Year 2000 Compliant in all material respects.
20.26 Dutch Obligors
Each Original Borrower incorporated in the Netherlands (the "Dutch
Borrower") is in compliance with The Netherlands Act on the Supervision of
Credit Institutions 1992 (Wet Toezicht Kredietwezen 1992, hereinafter, the
"WTK") and, to the extent applicable, complies with and will at all times
comply with the requirements for exemption as set out in the Ministerial
Regulation of 4th February 1993 (the "Regulation") in implementation of
Article 1 paragraph 3 of WTK as in effect - retroactively - from 1st
January 1993 and published in the Official State Gazette (Staatscourant)
No. 29 of 11th February 1993 and exempting from banking supervision
exercised by the Netherlands' Central Bank (De Nederlandsche Bank N.V.;
"DNB") Netherlands finance companies (such as the Dutch Borrower) subject
to the conditions set out in the Regulation being met.
The Dutch Borrower has not received from DNB a notice within the meaning
of article 7 of the Regulation by which DNB sets a period within which the
Dutch Borrower must comply with the provisions of the Regulation.
20.27 Existing Bank Accounts
The Existing Bank Accounts are all the accounts held by members of the
Obligor Group with financial institutions as at the date hereof.
20.28 Business, Business Plan and Reports
20.28.1 It only engages in activities which relate to the carrying on of a
Telecoms Business.
20.28.2 All material written factual information in the possession of the
Group relating to the Licences and the Material Agreements has
been disclosed for the purposes of the preparation of the Due
Diligence Reports.
20.29 Repetition of Representations
Except to the extent that a Repeated Representation speaks of a particular
date, the Repeated Representations shall be repeated by the relevant
Obligor by reference to the facts and circumstances then existing, (i) on
the first day of each Interest Period; (ii) on each date on which an
Advance (including a Renewed Advance) is or is to be made; (iii) on each
date on which a company becomes (or it is proposed that a company becomes)
an Additional Guarantor; and Clause 20.14 (Information Memorandum) and
sub-clause 20.28.2 of Clause 20.28 (Business, Business Plan and Reports)
shall be deemed to be so repeated on the Syndication Date and on the date
of execution of the Participation Agreement.
21. FINANCIAL AND OTHER INFORMATION
21.1 Annual Statements
The Parent shall as soon as the same become available: (i) but in any
event within 120 days after the end of each of its financial years,
deliver to the Facility Agent in sufficient copies for the Participants
consolidated financial statements of the Group for such financial year,
audited by Xxxxxx Xxxxxxxx or another major firm of auditors of
international repute and without any material qualification by such
auditors; and (ii), if prepared, deliver to the Facility Agent in
sufficient copies for the Participants the unconsolidated annual financial
statements of each Borrower (or on a consolidated basis, as the case may
be) for its financial year (on an audited basis if so prepared).
21.2 Quarterly Management Statements
The Parent shall as soon as the same become available, but in any event
within 45 days after the end of each quarter of each of its financial
years, deliver to the Facility Agent in sufficient copies for the
Participants its management statements for such period prepared on a
consolidated basis in the agreed form or containing information of the
same type and to the same level of detail as the agreed form and shall
include, without limitation, details of Direct Client Revenues and
Indirect Client Revenues generated during such period.
21.3 Monthly Management Statements
The Parent shall as soon as the same become available, but in any event
within 30 days after the end of each month (other than the month ending at
the end of a quarter of the financial year of the Parent, when delivery of
such statements shall be at the discretion of the Parent), deliver to the
Facility Agent in sufficient copies for the Participants its monthly
accounts for such period prepared on a consolidated basis in the agreed
form or containing information of the same type and to the same level of
detail as the agreed form and shall include, without limitation, details
of Direct Client Revenues and Indirect Client Revenues generated during
such period.
21.4 Requirements as to Financial Statements
The Parent shall ensure that each of its financial statements delivered by
it pursuant to this Clause 21 (other than Clause 21.1(ii) and Clause 21.3
(Monthly Management Statements) is certified by an Authorised Signatory of
the Parent as fairly presenting in all material respects the financial
condition of the Group as at the end of the period to
which those financial statements relate and of the results of the Group's
operations during such period.
21.5 Compliance Certificates
The Parent shall ensure that each set of its financial statements
delivered by it pursuant to Clause 21.1 (Annual Statements) and Clause
21.2 (Quarterly Management Statements) is accompanied by a Compliance
Certificate (a) in the case of a Compliance Certificate delivered with its
annual financial statements (i) signed by its auditors or (ii) signed by
two duly authorised officers of the Group together with a confirmation (in
a form in accordance with current practices of such auditors) signed by
the auditors confirming that they have audited the annual financial
statements in accordance with generally accepted auditing standards in the
United States of America, confirming that they are aware of the covenants
set out in sub-clauses 22.1.1 to 22.1.5 inclusive and sub-clauses 22.1.7
to 22.1.9 inclusive of Clause 22.1 (Financial Condition and MAN-Network
Construction) and providing negative assurance regarding the compliance of
the Parent with such covenants; and (b) in the case of a Compliance
Certificate delivered with its quarterly financial statements, by two duly
authorised officers of the Group.
21.6 Information in respect of the Licences
Each Obligor shall promptly, after receipt or despatch of the same,
deliver (or through the Obligors' Agent) to the Facility Agent copies of
all material correspondence with the Relevant Authorities relating to any
breach or possible revocation, suspension, amendment, variation or
withdrawal of a Licence.
21.7 Material Agreements
The Obligors' Agent shall notify the Facility Agent promptly upon the
execution of a Material Agreement after the date hereof and supply the
Facility Agent with a copy thereof.
21.8 Other Financial Information
Each Obligor shall from time to time on the request of the Facility Agent,
furnish the Facility Agent with such information about the financial
condition of the Group as the Facility Agent or any Participant (through
the Facility Agent) may reasonably require.
21.9 Budget
The Obligors' Agent shall, within 30 days of the commencement of each
financial year of the Parent, deliver to the Facility Agent in sufficient
copies for the Participants a budget for the Group for such financial year
approved by the direct or indirect shareholders of the Parent and in the
agreed form or containing information of the same type and to the same
level of detail as the agreed form.
21.10 Accounting Policies
The Parent shall ensure that each set of financial statements delivered by
the Parent in respect of the consolidated Group pursuant to this Clause 21
is prepared using accounting policies, practices, procedures and reference
periods consistent with those applied in the preparation of the Original
Financial Statements unless, in relation to any
such set of financial statements, the Parent notifies the Facility Agent
that there have been one or more changes in any such accounting policies,
practices, procedures or reference periods and shall deliver all
subsequent financial statements in accordance with such changes provided
that for a period of 60 days from such date the Facility Agent shall
negotiate with the Obligors' Agent in good faith to agree amendments to
the requirements as to financial condition and/or the financial
definitions set out in Clause 22 (Financial Conditions) to reflect such
changes; and during such periods and in the event that no agreement is
reached the Parent shall ensure that its auditors provide:
21.10.1 a description of the changes and the adjustments which would be
required to be made to those financial statements in order to
cause them to use the accounting policies, practices, procedures
and reference periods upon which the Original Financial Statements
were prepared; and
21.10.2 sufficient information, in such detail and format as may be
reasonably required by the Facility Agent, to enable the
Participants to make an accurate comparison between the financial
position indicated by those financial statements and the Original
Financial Statements,
and any reference in this Agreement to those financial statements shall be
construed as a reference to those financial statements as adjusted to
reflect the basis upon which the Original Financial Statements were
prepared.
21.11 Material Proceedings
Each Obligor shall promptly notify the Facility Agent of any action or
administration proceeding of or before any court or agency including,
without limitation, any Regulatory Authority which has been started or
threatened in writing against it and which is reasonably likely to be
determined against it and if so determined would be reasonably likely to
have a Material Adverse Effect or that purports to affect the legality,
validity, binding effect or enforceability of the Credit Facility
Documents.
21.12 Notification of Events of Default
The Obligors' Agent shall promptly inform the Facility Agent of the
occurrence of any Event of Default or Potential Event of Default and, upon
receipt of a written request to that effect from the Facility Agent,
confirm to the Facility Agent that, save as previously notified to the
Facility Agent or as notified in such confirmation, no Event of Default or
Potential Event of Default has occurred which is continuing.
21.13 Access to Books and Records
The Parent shall ensure that any representative or professional adviser to
the Facility Agent may at reasonable times during normal business hours
and on reasonable notice by the Facility Agent to the Parent, have access
(to the extent not restricted by law or any confidentiality requirements
to which any member of the Group is subject) to the Group's property and
be provided with copies of reasonably required books, records, accounts,
documents, computer programmes, data or other information in the
possession of or available to it subject to any reasonable confidentiality
undertaking required by it or any legal, regulatory or licence
requirements.
22. FINANCIAL CONDITION
22.1 Financial Condition and MAN-Network Construction
The Parent shall ensure that the financial condition of the Group shall be
such that:
22.1.1 Maximum Senior Debt Percentage: On the last day of each Financial
Quarter to and including 31 December 2000 which ends on each of
the dates specified below, the Total Senior Debt expressed as a
percentage of the aggregate of Invested Capital and Total Senior
Debt shall not exceed the percentage specified below opposite such
date; and
after 31 December 2000, the financial condition of the Group on
the last day of each Financial Quarter shall comply with at least
one of the requirements as to financial condition set out in this
Clause 22.1.1 and in Clause 22.1.2.
Financial Quarter ending Total Senior Debt expressed as a
percentage of the aggregate of Invested
Capital and Total Senior Debt (%)
31 March 2000 35
30 June 2000 40
30 September 2000 47
31 December 2000, 31 March 2001,
30 June 2001 and 30 September 2001 50
22.1.2 Total Senior Debt to AART: On the last day of each Financial
Quarter which ends on each of the dates specified below (in the
event that the financial condition of the Group does not on such
date comply with the requirements set out in Clause 22.1.1), the
ratio of Total Senior Debt to AART shall not exceed the amount
specified below opposite such date.
Financial Quarter ending Total Senior Debt to AART
31 March 2001 2.25 : 1
30 June 2001 2.00 : 1
30 September 2001 1.75 : 1
22.1.3 Senior Debt Leverage Ratio: On the last day of each Financial
Quarter which ends on each of the dates specified below, the
Senior Debt Leverage Ratio shall not exceed the amount specified
below opposite such date.
Financial Quarter ending Senior Debt Leverage Ratio
31 December 2001 6.50: 1
31 March 2002 5.00:1
30 June 2002 4.50:1
Financial Quarter ending Senior Debt Leverage Ratio
30 September 2002 4.50:1
31 December 2002 3.50:1
31 March 2003 3.00:1
Thereafter, 31 March, 30 June, 30 September and 31 2.50:1
December
22.1.4 Annualised Direct Client Revenues: On the last day of each
Financial Quarter which ends on each of the dates specified below,
the Annualised Direct Client Revenues are not less than the amount
specified below opposite such date.
Financial Quarter ending Annualised Direct Client Revenues
((Euro) million)
31 December 1999 4.7
31 March 2000 7.5
30 June 2000 20
30 September 2000 33
31 December 2000 46
31 March 2001 62.5
30 June 2001 83.5
30 September 2001 112
22.1.5 Annualised EBITDA: On the last day of each Financial Quarter which
ends on each of the dates specified below, Annualised EBITDA is
not less than the amount specified below opposite such date.
Financial Quarter ending Annualised EBITDA
((Euro) million)
31 December 1999 (56.8)
31 March 2000 (66.250)
30 June 2000 (66.250)
30 September 2000 (66.250)
31 December 2000 (55)
31 March 2001 (26.5)
30 June 2001 (11.3)
30 September 2001 12.3
22.1.6 MAN-Network Constructed: On the last day of each Financial Quarter
which ends on each of the dates specified below, the minimum Route
km amount of MAN-Network (for the purposes of the definition of
MAN-Network in this Clause 22.1.6 only Leased Capacity provided
pursuant to a Long Term Lease Agreement shall be included, but not
other Leased Capacity) which shall be Constructed in aggregate in
the French Network and the German Network, is not less than the
amount set out below opposite such date provided that not
more than 25% of such Route km comprises Leased Capacity leased on
Long Term Lease Agreements.
Financial Quarter ending Minimum MAN-Network Constructed
(Route km)
31 December 1999 160
31 March 2000 222
30 June 2000 400
30 September 2000 540
31 December 2000 580
31 March 2001 590
30 June 2001 615
30 September 2001 683
31 December 2001 715
31 December 2002 770
31 December 2003 810
31 December 2004 840
31 December 2005 860
31 December 2006 870
22.1.7 Senior Interest Cover Ratio: On the last day of each Financial
Quarter which ends on each of the dates specified below, the
Senior Interest Cover Ratio shall not be less than the amount
specified below opposite such date.
Financial Quarter ending Senior Interest Cover Ratio
31 December 2001 2.00
31 March 2002 2.50
30 June 2002 3.00
30 September 2002 3.00
31 December 2002 3.50
Thereafter, 31 March, 30 June, 30 September and 31 4.00
December
22.1.8 Total Interest Coverage Ratio: On the last day of each Financial
Quarter which ends on each of the dates specified below, the Total
Interest Coverage Ratio shall not be less than the amount
specified below opposite such date.
Financial Quarter ending Total Interest Coverage Ratio
31 December 2001 2.00
31 March 2002 2.50
30 June 2002 3.00
30 September 2002 3.00
Thereafter, 31 March, 30 June, 30 September and 31 3.50
December
22.1.9 Debt Service Cover Ratio: On the last day of each Financial
Quarter which ends on each of the dates specified below, the Debt
Service Coverage Ratio shall not be less than the amount specified
below opposite such date.
Financial Quarter ending Debt Service Coverage Ratio
31 March 2003 1.50
30 June 2003 1.50
30 September 2003 1.50
31 December 2003 1.50
31 March 2004 1.60
30 June 2004 1.60
30 September 2004 1.60
31 December 2004 1.60
31 March 2005 1.70
30 June 2005 1.70
30 September 2005 2.00
31 December 2005 2.00
31 March 2006 2.25
30 June 2006 2.50
30 September 2006 2.50
22.2 Financial Definitions
In Clause 22.1 (Financial Condition) the following terms have the
following meanings:
"AART" means the annualised adjusted revenue test comprising, on any date
of determination, the aggregate of:
(a) 1.0 x Direct Client Revenues ; and
(b) 0.75 x Indirect Client Revenues,
in each case for the relevant Financial Quarter multiplied by four.
"Annualised EBITDA" means (i) for any period ending on or before 30
September 2001, EBITDA calculated for the relevant Financial Quarter,
multiplied by four; and (ii) thereafter, EBITDA calculated on an
historical twelve months rolling basis.
"Annualised Direct Client Revenues" means, on any date of determination,
Direct Client Revenues in respect of any Financial Quarter ending on such
date multiplied by four.
"Debt Service Coverage Ratio" means, on any date of determination,
Annualised EBITDA divided by the aggregate of any cash interest paid on
and scheduled repayments of Permitted Indebtedness paid by any member of
the Group in respect of the period of twelve months ending on that date.
"EBITDA" means net loss or income of the Group, plus interest expense,
less interest income, less unrealised foreign currency exchange gains,
plus unrealised foreign
currency exchange losses, less other non-cash income, plus other non-cash
expenses, plus taxes, plus depreciation and amortisation.
"Invested Capital" means the aggregate of (i) fully paid up cash equity
and (ii) the proceeds of the High Yield Bonds as at the closing date
thereof and of any future high yield issue of the Group, in each case net
of any original issue discount, provided that such capital is immediately
upon receipt to be and is invested in Cash Equivalent Investments or the
Obligor Group (other than the Parent) in the form of equity, Subordinated
High Yield Loans or Subordinated Shareholders Loans.
"Senior Debt Leverage Ratio" means, on any date of determination, the
ratio of Total Senior Debt to Annualised EBITDA.
"Senior Interest Coverage Ratio" means, on any date of determination,
Annualised EBITDA divided by any interest paid in relation to Total Senior
Debt in respect of the period of twelve months ending on such date.
"Total Interest Coverage Ratio" means, on any date of determination,
Annualised EBITDA divided by cash interest paid on Financial Indebtedness
(other than indebtedness falling within paragraphs (b), (c), (d), (e),
(i), (j) and (k) of the definition of "Permitted Indebtedness") of each
member of the Group in respect of the period of twelve months ending on
such date.
"Total Senior Debt" means, at any time, the aggregate of all amounts
outstanding under the Facilities and all other amounts of Financial
Indebtedness of each member of the Group ranking pari passu therewith
(other than indebtedness falling within paragraphs (b), (c), (d), (e),
(f), (g), (i), (j) and (k) of the definition of "Permitted Indebtedness").
22.3 Accounting Terms
All accounting expressions which are not otherwise defined herein shall be
construed in accordance with generally accepted accounting principles in
the United States.
23. COVENANTS
23.1 Maintenance of Legal Validity and Authorisation
23.1.1 Each Obligor shall obtain and comply in all material respects with
the terms of and do all that is necessary to maintain in full
force and effect all authorisations, approvals, licences,
consents, exemptions required in or by the laws of its
jurisdiction of incorporation including, without limitation, any
Relevant Laws to enable it lawfully to enter into and perform its
obligations under the Credit Facility Documents and to ensure the
legality, validity, enforceability or admissibility in evidence in
its jurisdiction of incorporation of the Credit Facility Documents
and, on reasonable request of the Facility Agent, supply copies
(certified by an Authorised Signatory of the relevant Obligor as
true, complete and up to date) of any such authorisations,
approvals, licences, consents and exemptions.
23.1.2 Each Obligor shall (a) obtain the Licences and (to the extent that
failure to obtain or maintain might reasonably be expected to have
a Material Adverse Effect) any Necessary Authorisations required
at such time for the carrying on of its business, and (b) take all
reasonable steps to ensure that any Necessary Authorisations are
not revoked, suspended, amended, varied, withdrawn or not renewed
in a manner that might reasonably be expected to have a Material
Adverse Effect.
23.2 Insurance
The Parent shall procure that each member of the Group maintains
insurances on and in relation to its business and assets with reputable
underwriters or insurance companies against such risks and to such extent
as is usual for companies carrying on a business such as that carried on
by such member of the Group.
23.3 Environmental Compliance
The Parent shall ensure that each member of the Group shall comply in all
material respects with all Environmental Law and obtain and maintain any
Environmental Permits and take all reasonable steps in anticipation of
known or expected future changes to or obligations under the same, breach
of which (or failure to obtain, maintain or take which) might reasonably
be expected to have a Material Adverse Effect.
23.4 Environmental Claims
The Obligors' Agent shall inform the Facility Agent in writing as soon as
reasonably practicable upon becoming aware of the same if any
Environmental Claim has been commenced or (to the best of the knowledge
and belief of any member of the Group) is threatened against any member of
the Group in any case where such claim would be reasonably likely, if
determined against such member of the Group, to have a Material Adverse
Effect or of any facts or circumstances which will or are reasonably
likely to result in any Environmental Claim being commenced or threatened
against any member of the Group in any case where such claim would be
reasonably likely, if determined against such member of the Group, to have
a Material Adverse Effect.
23.5 Claims Pari Passu
Each Obligor shall ensure that at all times the claims of the Finance
Parties and the EIF against it under the Credit Facility Documents rank at
least pari passu with the claims of all its other unsecured and
unsubordinated creditors save those whose claims are mandatorily preferred
by any bankruptcy, insolvency, liquidation or other similar laws of
general application.
23.6 Consents and Approvals
The Parent shall, procure that each member of the Group shall comply with
all applicable laws, rules, regulations and orders and obtain and maintain
all governmental and regulatory consents, licences, authorisations and
approvals, including the Licences and other Necessary Authorisations to
the extent any non-compliance would reasonably be expected to have a
Material Adverse Effect.
23.7 Conduct and Change of Business of the Group
23.7.1 The Parent shall ensure that each member of the Group has the
right and is duly qualified to conduct Telecoms Business as it is
conducted from time to time.
23.7.2 The Parent shall ensure that each member of the Group keeps and
maintains books, records and accounts to the extent as is usual
for companies carrying on a business such as that carried on by
such member of the Group.
23.7.3 The Parent shall ensure that substantially all the business of the
Group (taken as a whole) comprises Telecoms Business in France and
Germany (not including the internet business of iPcenta Limited);
and that such Telecoms Business is managed and operated in all
material respects in accordance with the Licences, the Business
Plan and applicable laws including, without limitation, any
Relevant Laws.
23.8 Filing of Tax Returns
The Parent shall ensure that each member of the Group files all tax
returns required to be filed in all jurisdictions in which they are
situated or carry on business or otherwise subject to pay tax and will
promptly pay all taxes (including any applicable stamp duty payable in
relation to the Finance Documents) which are due and payable on such
returns or any assessment made against them (other than those being
contested in good faith).
23.9 Year 2000 Compliance
The Parent shall use its reasonable endeavours to ensure that all Computer
Systems owned or operated by any member of the Group are Year 2000
Compliant where the failure of any such system to be Year 2000 Compliant
would reasonably be expected to have a Material Adverse Effect.
23.10 Guarantors
23.10.1 The Parent shall ensure that each member of the Group that is not
an Original Guarantor as soon as reasonably practicable upon
becoming a Material Subsidiary accedes hereto as an Additional
Guarantor in accordance with Clause 37 (Additional Guarantors) to
the extent legally permissible and commercially practicable.
23.10.2 The Parent shall ensure at all times by reference to the most
recent quarterly statements delivered pursuant to Clause 21.2
(Quarterly Management Statements) that to the extent legally
permissible and commercially practicable the aggregate book assets
and the aggregate revenues of the Guarantors comprise respectively
at least 80% of the consolidated book assets and consolidated
revenues of the Group; and accordingly the Parent shall procure
that additional subsidiaries that are not Material Subsidiaries
accede as Additional Guarantors as necessary to the extent legally
permissible and commercially practicable.
23.11 Security
23.11.1 The Parent shall ensure that each member of the Group which is a
Material Subsidiary shall at its own expense take all such action
as the Security Agent may reasonably require (to the extent
legally possible and commercially practicable) for the purpose of
perfecting or protecting the Security Agent's rights under and
preserving the security interests intended to be created or
evidenced by any of the Credit Facility Documents and following
the making of any declaration pursuant to Clause 24.19
(Acceleration and Cancellation) or 24.20 (Advances Due on Demand)
for facilitating the realisation of any such security or any part
thereof.
23.11.2 Each Obligor shall, and shall procure that each member of the
Group which is a Material Subsidiary shall, to the extent legally
possible and commercially practicable and as reasonably required
by the Facility Agent from time to time, promptly create or
procure the creation of security over any assets acquired after
the date hereof including, without limitation each Material
Agreement in favour of the Finance Parties to secure all or any of
the obligations of the Obligors under the Credit Facility
Documents.
23.11.3 The Parent shall procure that CompleTel Services S.A.S. shall
enter into, and CompleTel Services S.A.S. covenants to enter into,
with the Security Agent, as soon as practicable (and in any event
within 15 days) after CompleTel Services S.A.S. (a) enters into
its first contract for the provision of services and (b) has
acquired the equipment necessary to fulfil its obligations
thereunder, a Nantissement de Fonds de Commerce (Charge over
Business Agreement) substantially in the form of Schedule 14 (Form
of Charge over Business Agreement to be entered into between
CompleTel Services S.A.S. and the Security Agent pursuant to
Clause 23.11.3).
23.11.4 The Parent shall procure that CompleTel ECC B.V. and each other
member of the Group which owns any trademark of the Group shall
create, and CompleTel ECC B.V. and each such other member of the
Group covenants to create, in favour of the Security Agent (a) as
soon as practicable and in any event within 30 days of the date
hereof, security over all trademarks of the Group registered at
the date hereof in France and Germany; (b) as soon as practicable
and in any event within 30 days of the date of registration
thereof, security over all further trademarks of the Group
registered at any time in France and Germany; and (c) as soon as
practicable and in any event within 30 days of any member of the
Group launching services under the CompleTel name in any other
jurisdiction, security over all trademarks of the Group registered
in any such other jurisdiction, and in each case such security
shall be in form and substance satisfactory to the Security Agent,
acting reasonably.
23.12 Hedging Programme
The Parent shall procure that commencing three months from the date of the
Credit Agreement, each time upon which the Loan reaches an amount or
multiple of (Euro) 50
million an Obligor as soon as practicable enters into hedging arrangements
with the Hedging Banks with respect to interest payments under the Credit
Agreement with respect to 50% of such increase in the Loan and for an
initial period of not less than three years.
23.13 Use of Proceeds
The Parent shall ensure that, in the case of an IPO as set out in
paragraph 2(b) of Schedule 12 (Margin Adjustment), a further raising of
equity investment or a high yield issue in accordance with paragraph (g)
of the definition of "Permitted Indebtedness", the proceeds received by it
shall be used for Cash Equivalent Investments or investment in Telecoms
Business of the Obligor Group in France or Germany.
23.14 Negative Pledge
The Parent shall ensure that no member of the Group shall create or permit
to subsist any Encumbrance over all or any of its present or future
revenues or assets other than a Permitted Encumbrance.
23.15 Loans and Guarantees
The Parent shall ensure that no member of the Group, without the prior
written consent of an Instructing Group, shall (i) make any loans (other
than Permitted Loans), (ii) grant any credit (save in the ordinary course
of business) or (ii) (other than Permitted Guarantees) give any guarantee
or indemnity (except as required hereby) to or for the benefit of any
person or otherwise voluntarily assume any liability, whether actual or
contingent, in respect of any obligation of any other person other than
another member of the Obligor Group, save that this Agreement shall not
restrict any such loan, grant of credit, guarantee, indemnity or other
voluntary assumption of any liability in respect of amounts at any time
outstanding which do not exceed in aggregate, for the Group together
(Euro) 2,500,000 or equivalent.
23.16 Disposals
The Parent shall ensure that (disregarding sales of stock in trade in the
ordinary course of business) no member of the Group shall sell, lease,
transfer or otherwise dispose of, by one or more transactions or series of
transactions (whether related or not), the whole or any part of its
revenues or its assets other than a Permitted Disposal.
23.17 Mergers
The Parent shall ensure that no member of the Group shall, without the
prior written consent of an Instructing Group, merge or consolidate with
any other person, enter into any demerger transaction or participate in
any other type of corporate reconstruction save for (i) mergers between
members of the Obligor Group (other than with the Parent) where the
surviving entity assumes the rights and obligations of the merged or
consolidated entities and (ii) solvent intra Group reorganisations (other
than with the Parent) provided that in each case upon such merger,
consolidation or solvent intra Group reorganisation, the Parent ensures
that all the shares of each member of the Group are subject to an
Encumbrance in substantially the same form as the relevant Security
Documents prior to such merger, consolidation or solvent reorganisation.
23.18 Investments
The Parent shall procure that no member of the Group shall:
23.18.1 purchase, subscribe for or otherwise acquire any shares (or other
securities or any interest therein) in any other company or agree
to do any of the foregoing; or
23.18.2 purchase or otherwise acquire any assets (other than in the
ordinary course of business) or (without limitation to any of the
foregoing) acquire any business or interest therein or agree to do
so; or
23.18.3 form, or enter into, any partnership, consortium, joint venture or
other like arrangement or agree to do so,
other than, in each case, a Permitted Investment or a Permitted
Acquisition.
23.19 Financial Indebtedness
The Parent shall ensure that no member of the Group shall, incur, create
or permit to subsist or have outstanding any Financial Indebtedness or
enter into any agreement or arrangement whereby it is entitled to incur,
create or permit to subsist any Financial Indebtedness other than, in
either case, Permitted Indebtedness.
23.20 Constitutional Documents
The Parent shall ensure that no member of the Group agrees to any
amendment or variation of its memorandum or articles of association or
other constitutional documents from the form as delivered pursuant to
Clause 2.3 (Conditions Precedent) or otherwise, as the case may be, as at
the date hereof, which might be reasonably likely to have a Material
Adverse Effect or which would confer on any person a right which if
exercised might be reasonably likely to result in an Event of Default or
which might be reasonably likely to have a Material Adverse Effect.
23.21 Transactions with Affiliates
The Parent shall ensure that no member of the Group agrees to enter into
any transactions or series of transactions with any affiliate (not being a
member of the Obligor Group), other than on arm's length terms.
23.22 Intercompany CECC Facility Agreements
The Parent shall ensure that the members of the Group who are parties to
the Intercompany CECC Facility Agreements shall comply with the terms
thereof and shall not amend, without the prior consent of an Instructing
Group, the terms thereof.
23.23 Dividends and Other Distributions
The Parent shall ensure that no member of the Group (other than the
Parent) shall, without the prior written consent of an Instructing Group
pay, make or declare any dividend or other distribution in respect of any
financial year of such member of the Group to the Parent or to a person
who is not a member of the Obligor Group or make any payment of interest
on any Financial Indebtedness to the Parent or to another member of the
Group who is not an Obligor other than a Permitted Distribution.
23.24 Bank Accounts
23.24.1 The Parent shall (a)(i) use its reasonable endeavours to procure
that at all times the France Accounts are charged or pledged to
the Security Agent under a Security Document on terms reasonably
satisfactory to the Facility Agent; and (ii) ensure that those
France Accounts not subject to the charge or pledge in paragraph
(i) above are operated only as receiving accounts and that debits
shall only be made for the purposes of transferring monies
standing to their credit to the SAS Account; and (b) ensure that
at all times the account holder of each of the France Accounts
(other than the SAS Account) gives an irrevocable payment
instruction to the account bank requiring a transfer to the SAS
Account of all funds standing to the credit of each of the other
France Accounts, such transfer to be made at monthly intervals.
23.24.2 The Parent shall (i) use its reasonable endeavours to procure that
at all times the Bank Accounts (other than the France Accounts)
are charged or pledged to the Security Agent under a Security
Document on terms reasonably satisfactory to the Facility Agent;
and (ii) ensure that those Bank Accounts (other than the France
Accounts) not subject to the charge or pledge in paragraph (i)
above are operated only as receiving accounts and that debits
shall only be made for the purposes of transferring monies
standing to their credit to the SAS Account and that at all times
the account holder of such accounts gives an irrevocable payment
instruction to the account bank requiring a transfer to the SAS
Account of all funds standing to the credit of each such account,
such transfer to be made at monthly intervals.
23.24.3 A member of the Obligor Group may open a new bank account in
addition to the Existing Bank Accounts provided that firstly
details of such account are delivered to the Facility Agent and
that it is pledged or charged and operated on the terms of sub-
clauses 23.24.1 and 23.24.2 of this Clause 23.24.
23.25 German Obligors
Without prejudice to any of the obligations imposed under such covenants
on any Obligor which is not incorporated in Germany whether or not related
to any Obligor incorporated in Germany, the covenants given under Clause
23.7 (Conduct and Change of Business of the Group), Clause 23.15 (Loans
and Guarantees), Clause 23.16 (Disposals), Clause 23.17 (Mergers), Clause
23.18 (Investments), Clause 23.19 (Financial Indebtedness), Clause 23.21
(Transactions with Affiliates) and Clause 23.23 (Dividends and other
Distributions) (the "Relevant Restrictive Covenants") shall not be given
by any Obligor incorporated in Germany (each a "German Obligor") or any of
its subsidiaries incorporated in Germany from time to time (together with
each German Obligor, the "German Group"), provided always that:
23.25.1 The German Obligor shall give the Facility Agent not less than 40
Business Days' prior written notice of the intention of any member
of the German Group to carry out any of the acts or take any of
the steps referred to in the Relevant Restrictive Covenants.
23.25.2 The Facility Agent shall be entitled within 15 Business Days of
receipt of the German Obligor's notice under sub-clause 23.25.1 to
request the German Obligor to supply to the Facility Agent in
sufficient copies for the Participants any relevant information in
connection with the proposed action or steps referred to in such
notice.
23.25.3 The Facility Agent shall notify the German Obligor, within 15
Business Days of receipt of the German Obligor's notice under sub-
clause 23.25.1, or if additional information has been requested by
the Facility Agent within the prescribed time, within 15 Business
Days of receipt of such information, whether the proposed action
or steps under sub-clause 23.25.1 may, in the opinion of the
Facility Agent (acting with the prior consent of an Instructing
Group), have a Material Adverse Effect or otherwise adversely
affect the interests of the Finance Parties and the EIF under the
Finance Documents.
23.25.4 If the Facility Agent notifies the German Obligor under sub-clause
23.25.1 that, in its opinion, the proposed action or steps
specified in the German Obligor's notice delivered under sub-
clause 23.25.1 may have a Material Adverse Effect or otherwise
adversely affect the interests of the Finance Parties or the EIF
under the Finance Documents and the relevant member of the German
Group nevertheless takes such action or steps under sub-clause
23.25.1, the Facility Agent shall be entitled to make (and, if so
instructed by an Instructing Group, shall make) the declaration,
request and/or instruction set out in Clause 24.20 (Advances Due
on Demand).
23.26 Shareholders of German Obligors
Each Obligor which is a shareholder of a German Obligor which has provided
a guarantee or security under any of the Finance Documents and which is
constituted in the form of a German Limited liability company
(Gesellschaft mit beschrnkter Haftung - "GmbH") or a limited partnership
(Kommanditgesellschaft) where the general partner (Komplementr) is a GmbH
("GmbH & Co. KG") undertakes that with respect to such German Obligor no
increase of capital (Stammkapital) out of retained earnings
(Kapitalerhohung aus Gesellschaftsmitteln) after the date hereof will be
effected without the prior written consent of the Facility Agent (acting
on behalf of an Instructing Group).
24. EVENTS OF DEFAULT
Each of Clause 24.1 (Failure to Pay) to Clause 24.18 (Material Adverse
Change) describes circumstances which constitute an Event of Default for
the purposes of this Agreement.
24.1 Failure to Pay
Any sum due from an Obligor or the Obligors under the Finance Documents is
not paid on the due date at the time, in the currency and in the manner
specified therein unless such failure to pay is caused by administrative
or technical error and payment is made
within three Business Days from the date the Facility Agent notifies the
relevant Obligor of such failure.
24.2 Misrepresentation
Any representation or statement made or deemed to be made by an Obligor in
the Finance Documents or in any notice or other document, certificate or
statement delivered by it pursuant thereto or in connection therewith is or
proves to have been incorrect or misleading in any material respect when
made or deemed to be made and in the event that the act or circumstance
which led to such representation or warranty being incorrect or misleading
is capable of remedy, such action (if any) as the Facility Agent may
require shall not have been taken within 30 days of the Facility Agent
notifying the person who made or was deemed to have made or repeated such
representation or warranty of such act or circumstance and such required
action.
24.3 Specific Covenants
An Obligor fails duly to perform or comply with any of the obligations
expressed to be assumed by it in Clause 21 (Financial and other
Information), Clause 23.5 (Claims Pari Passu), Clause 23.7 (Conduct and
Change of Business of the Group) (other than Clause 23.7.2), Clause 23.13
(Use of Proceeds), Clause 23.16 (Disposals), Clause 23.17 (Mergers), Clause
23.18 (Investments) or Clause 23.23 (Dividends and Other Distributions).
24.4 Financial Condition
At any time any of the requirements of Clause 22.1 (Financial Condition) is
not satisfied.
24.5 Other Obligations
An Obligor fails duly to perform or comply with any other obligation
expressed to be assumed by it in the Finance Documents and such failure, if
capable of remedy, is not remedied within thirty days after the Facility
Agent has given notice thereof to such Obligor.
24.6 Cross Default
Any Financial Indebtedness of any member of the Group is not paid when due
(or within any applicable grace period), any Financial Indebtedness of any
member of the Group is declared to be or otherwise becomes due and payable
prior to its specified maturity, any commitment for any Financial
Indebtedness of any member of the Group is cancelled or suspended by a
creditor of any member of the Group or any creditor of any member of the
Group becomes entitled to declare any Financial Indebtedness of any member
of the Group due and payable prior to its specified maturity, provided that
it shall not constitute an Event of Default if the aggregate amount of all
such Financial Indebtedness is less than (Euro) 5,000,000 (or its
equivalent in other currencies).
24.7 Insolvency and Rescheduling
Any Obligor is unable to pay its debts as they fall due, commences
negotiations with its creditors generally with a view to the general
readjustment or rescheduling of its
indebtedness or makes a general assignment for the benefit of or a
composition with its creditors generally.
24.8 Winding-up
Other than as permitted by Clause 23.17 (Mergers), any Obligor takes any
corporate action or other steps are taken or legal proceedings are started
(unless the same are frivolous, vexatious or an abuse of the process of
the court) for its winding-up, dissolution, administration or re-
organisation (whether by way of voluntary arrangement, scheme of
arrangement or otherwise) or for the appointment of a liquidator,
receiver, administrator, administrative receiver, conservator, custodian,
trustee or similar officer of it or of any material part of or all of its
revenues and assets.
24.9 Execution or Distress
Any execution or distress is levied against, or an encumbrancer takes
possession of, the whole or any material part of, the property,
undertaking or assets of any Obligor or any event occurs which under the
laws of any jurisdiction has a similar or analogous effect.
24.10 Failure to Comply with Final Judgment
Any Obligor fails within 28 days to comply with or pay any sum due from it
under any final judgment or any final order made or given by any court of
competent jurisdiction provided that if such judgment or order is for a
monetary amount it is for an aggregate amount of at least (Euro) 500,000.
24.11 Governmental Intervention
By or under the authority of any government, (a) the management of any
Obligor is wholly or partially displaced or the authority of any Obligor
in the conduct of its business is wholly or partially curtailed or (b) all
or a majority of the issued shares of any Obligor or the whole or any part
(the book value of which is twenty per cent. or more of the book value of
the whole) of its revenues or assets is seized, nationalised, expropriated
or compulsorily acquired.
24.12 Ownership of the Obligors
Any Obligor (other than the Parent) ceases to be a direct or indirect
wholly-owned subsidiary of the Parent other than to the extent wound-up as
permitted by Clause 24.8 (Winding-up).
24.13 The Group's Business
The Group (taken as a whole) ceases to carry on the Telecoms Business.
24.14 Repudiation
Any Credit Facility Document or the security intended to be constituted by
or the subordination effected under any of the Credit Facility Documents
is repudiated by any person (other than a Finance Party or the EIF) or any
person (other than a Finance Party or the EIF) does or causes to be done
any act or thing evidencing an intention to repudiate any Finance Document
or any such security or subordination or any Credit Facility Document is
not or ceases to be in full force and effect or the validity or
applicability thereof to any sums due or to become due thereunder is
disaffirmed by or on behalf of any Obligor, save that there shall not be
an Event of Default under this Clause 24.14 by virtue of any of the
matters contained in the qualifications to the legal opinions referred to
in Schedule 3 (Conditions Precedent) or in Schedule 1 to the Amendment
Agreement.
24.15 Illegality
At any time any Obligor no longer has the legal power to perform its
material obligations under the Credit Facility Documents to which it is a
party or to own its material assets or to carry on its business to a
material extent or at any time it is or becomes unlawful for an Obligor
to perform or comply with any or all of its material obligations under
any Credit Facility Document to which it is a party or any of the
material obligations of an Obligor thereunder are not or cease to be
legal, valid, binding and enforceable.
24.16 Security
The Security Documents cease to confer valid and enforceable Encumbrances
of the type described therein over the assets referred to therein.
24.17 Material Agreements and Licences
(a) Any Material Agreement is amended or breached in a manner which might
reasonably be expected to have a Material Adverse Effect other than with
the prior consent of an Instructing Group, (b) any Licence is amended or
is breached in a manner which might reasonably be expected to have a
Material Adverse Effect or (c) any Licence or Material Agreement is not
renewed or is suspended or terminated without the obtaining of a
replacement (unless no longer required).
24.18 Material Adverse Change
Any event or circumstance occurs which would constitute a Material
Adverse Change.
24.19 Acceleration and Cancellation
Upon the occurrence of an Event of Default and at any time thereafter
whilst it is continuing, the Facility Agent may (and, if so instructed by
an Instructing Group, shall) by notice to the Obligors' Agent:
24.19.1 declare all or any part of the Advances to be immediately due
and payable (whereupon the same shall become so payable together
with accrued interest thereon and any other sums then owed by
the Borrowers under the Finance Documents) or declare all or any
part of the Advances to be due and payable on demand of the
Facility Agent; and/or
24.19.2 declare that any undrawn portion of the Facilities shall be
cancelled, whereupon the same shall be cancelled and the
Available Commitment of each Bank shall be reduced to zero.
24.20 Advances Due on Demand If, pursuant to Clause 24.19 (Acceleration and
Cancellation), the Facility Agent declares all or any part of the
Advances to be due and payable on demand of the
Facility Agent, then, and at any time thereafter, the Facility Agent may
(and, if so instructed by an Instructing Group, shall) by notice to the
Borrowers:
24.20.1 require repayment of all or such part of the Advances on such date
as it may specify in such notice (whereupon the same shall become
due and payable on the date specified together with accrued
interest thereon and any other sums then owed by the Borrowers
under the Finance Documents) or withdraw its declaration with
effect from such date as it may specify; and/or
24.20.2 select as the duration of any Interest Period or Term which begins
whilst such declaration remains in effect a period of six months
or less.
25. GUARANTEE AND INDEMNITY
25.1 Guarantee and Indemnity
Each of the Guarantors irrevocably and unconditionally jointly and
severally:
25.1.1 guarantees to each Finance Party and the EIF and agrees to pay
from time to time on demand by the Facility Agent any and every
sum or sums of money which each Borrower is at any time liable to
pay to any Finance Party and/or the EIF under or pursuant to the
Credit Facility Documents and which has become due and payable but
has not been paid at the time such demand is made; and
25.1.2 agrees as a primary obligation to indemnify each Finance Party and
the EIF from time to time on demand from and against any loss
incurred by any Finance Party and/or the EIF as a result of any of
the obligations of each Borrower guaranteed or purported to be
guaranteed by it under or pursuant to the Credit Facility
Documents being or becoming void, voidable, unenforceable or
ineffective as against such Borrower whether or not known to any
Finance Party and/or the EIF or any other person, the amount of
such loss being the amount which the person or persons suffering
it would otherwise have been entitled to recover from such
Borrower.
Each Guarantor shall pay any sum due hereunder within 5 Business Days of
written notice to the Guarantor.
25.2 Additional Security
The obligations of each Guarantor herein contained shall be in addition to
and independent of every other security which any Finance Party and/or the
EIF may at any time hold in respect of any Obligor's obligations under the
Credit Facility Documents.
25.3 Continuing Obligations
The obligations of each Guarantor herein contained shall constitute and be
continuing obligations notwithstanding any settlement of account or other
matter or thing whatsoever and shall not be considered satisfied by any
intermediate payment or satisfaction of all or any of the obligations of
the Obligors under the Credit Facility
Documents and shall continue in full force and effect until final payment
in full of all amounts owing by any Obligor under the Credit Facility
Documents and total satisfaction of all the Obligors' actual and contingent
obligations under the Credit Facility Documents.
25.4 Obligations not Discharged
Neither the obligations of each Guarantor herein contained nor the rights,
powers and remedies conferred in respect of each Guarantor upon any Finance
Party and/or the EIF by the Credit Facility Documents or by law shall be
discharged, impaired or otherwise affected by:
25.4.1 the winding-up, dissolution, administration or re-organisation of
any Obligor or any other person or any change in its status,
function, control or ownership;
25.4.2 any of the obligations of any Obligor or any other person under
the Credit Facility Documents or under any other security taken in
respect of any of its obligations under the Credit Facility
Documents being or becoming illegal, invalid, unenforceable or
ineffective in any respect;
25.4.3 time or other indulgence being granted or agreed to be granted to
any Obligor or any other person in respect of its obligations
under the Credit Facility Documents or under any such other
security;
25.4.4 any amendment to, or any variation, waiver or release of, any
obligation of any Obligor or any other person under the Credit
Facility Documents or under any such other security;
25.4.5 any failure to take, or fully to take, any security contemplated
hereby or otherwise agreed to be taken in respect of any Obligor's
obligations under the Credit Facility Documents;
25.4.6 any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security
taken in respect of any Obligor's obligations under the Credit
Facility Documents; or
25.4.7 any other act, event or omission which, but for this Clause 25.4,
might operate to discharge, impair or otherwise affect any of the
obligations of each Guarantor herein contained or any of the
rights, powers or remedies conferred upon any of the Finance
Parties and/or the EIF by the Credit Facility Documents or by law.
25.5 Settlement Conditional
Any settlement or discharge between an Obligor and any of the Finance
Parties and/or the EIF shall be conditional upon no security or payment to
any Finance Party and/or the EIF by an Obligor or any other person on
behalf of an Obligor being avoided or reduced by virtue of any laws
relating to bankruptcy, insolvency, liquidation or similar laws of general
application and, if any such security or payment is so avoided or
reduced, each Finance Party and the EIF shall be entitled to recover the
value or amount of such security or payment from such Obligor subsequently
as if such settlement or discharge had not occurred.
25.6 Exercise of Rights
Neither any Finance Party nor the EIF shall be obliged before exercising
any of the rights, powers or remedies conferred upon them in respect of any
Guarantor by the Credit Facility Documents or by law:
25.6.1 to make any demand of any Obligor;
25.6.2 to take any action or obtain judgment in any court against any
Obligor;
25.6.3 to make or file any claim or proof in a winding-up or dissolution
of any Obligor; or
25.6.4 to enforce or seek to enforce any other security taken in respect
of any of the obligations of any Obligor under the Credit Facility
Documents.
25.7 Deferral of Guarantor's Rights
Each of the Guarantors agrees that, so long as any amounts are or may be
owed by an Obligor under the Finance Documents or an Obligor is under any
actual or contingent obligations under the Credit Facility Documents, it
shall not without the prior written consent of the Facility Agent exercise
any rights which it may at any time have by reason of performance by it of
its obligations under the Credit Facility Documents:
25.7.1 to be indemnified by an Obligor; and/or
25.7.2 to claim any contribution from any other guarantor of any
Obligor's obligations under the Credit Facility Documents; and/or
25.7.3 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties and
the EIF under the Credit Facility Documents or of any other
security taken pursuant to, or in connection with, the Credit
Facility Documents by all or any of the Finance Parties or the
EIF.
25.8 Suspense Accounts
All moneys received, recovered or realised by a Participant by virtue of
Clause 25.1 (Guarantee and Indemnity) may, in that Participant's
discretion, be credited to an interest bearing suspense account and may be
held in such account for so long as such Participant thinks fit pending the
application from time to time (as such Participant may think fit) of such
moneys in or towards the payment and discharge of any amounts owing by an
Obligor to such Participant under the Credit Facility Documents. Interest
shall accrue on monies from time to time standing to the credit of any
suspense account at the rate agreed between the relevant Guarantor and the
Facility Agent.
25.9 French Limitations
The maximum liability of each Guarantor incorporated in France (a "French
Guarantor") under this Clause 25 (Guarantee and Indemnity) shall at no
time exceed an amount equal to the maximum financial capacity of such
French Guarantor, such maximum financial capacity being limited to the
higher of (a) the borrowing of such Guarantor under this Agreement and
(b) 85% of the Net Worth of such French Guarantor calculated and
certified by the statutory auditors of such French Guarantor on the basis
of the last audited financial statements available at the date of the
relevant payment hereunder, where "Net Worth" means the shareholders'
equity (including, the share capital, share premium, legal and statutory
reserves, other reserves, profits and losses carried forward, investment
subsidies and regulated provisions) ("Capitaux propres") of such French
Guarantor.
25.10 German Limitations
Each Finance Party and the EIF agrees that the enforcement of the
guarantee and indemnity contained in Clause 25 (Guarantee and Indemnity)
(the "Guarantee") shall at all times be limited if and to the extent
that, in relation to an Obligor which has provided such Guarantee and
which is constituted in the form of a German limited liability Company
(Gesellschaft mit beschrankter Haftung - "GmbH") or a limited partnership
(Kommanditgesellschaft) where the general partner (Komplementar) is a
GmbH ("GmbH & Co. KG") such enforcement and the subsequent application of
proceeds towards the obligations secured by the Guarantee would otherwise
lead to the situation that such Obligor does not have sufficient assets
to maintain its capital (Stammkapital) provided that for the purposes of
the calculation of the net assets the following balance sheet items shall
be adjusted as follows:
(a) loans provided to such Obligor by any members of the Group as far as
such loans are subordinated or qualify under Section 32a of the
German Act on Limited Liability Companies (Gesetz betreffend die
Gesellschaften mit beschrankter Haftung - "GmbH-Gesetz") and Section
172a of the German Commercial Code (Handelsgesetzbuch - "HGB") shall
be disregarded; and
(b) loans and other contractual liabilities incurred in violation of the
provisions of the Credit Facility Documents shall be disregarded.
In addition, an Obligor which has provided a Guarantee hereunder and
which is constituted in the form of a GmbH or a GmbH & Co. KG shall
realise, if and to the extent legally permitted and, in respect of the
relevant Obligor's business, not unreasonable, in a situation where (i)
such Obligor does not have sufficient assets to maintain its capital
(Stammkapital) and (ii) a Finance Party and/or the EIF would (but for the
above sub-paragraph of this Clause 25.10) be entitled to enforce the
Guarantee, any and all of its assets that are shown in the balance sheet
with a book value (Buchwert) that is significantly lower than the market
value of the asset if such asset is not necessary for the relevant
Obligor's business (betriebsnotwendig).
26. COMMITMENT COMMISSION AND FEES
26.1 Commitment Commission on the Tranche A Term Facility
The Parent and each of the Borrowers, jointly and severally, shall pay to
the Facility Agent for account of each Bank a commitment commission on
the amount of such Bank's Available Tranche A Term Commitment less, in
the case of the Participating Lender, the Traded Proportion (as defined
in the Participation Agreement) of such commitment commission from day to
day during the Tranche A Term Availability Period, such commitment
commission to be calculated at the rate of 0.875 per cent. per annum or
if the events set out in paragraph 2(b) of Schedule 12 (Margin
Adjustment) occur, 1.00 per cent. per annum and shall be payable in
arrear on the last day (the "Payment Date") of each successive period of
three months which commences and ends during the Tranche A Term
Availability Period and on the last day of the Tranche A Term
Availability Period; provided that if the events set out in paragraph
2(b) of Schedule 12 (Margin Adjustment) occur during the last four
Business Days preceding the Payment Date, the adjustment in the
commitment commission shall commence on the Payment Date.
26.2 Commitment Commission on the Revolving Facility
The Parent and each of the Borrowers jointly and severally shall pay to
the Facility Agent for account of each Bank a commitment commission on
the amount of such Bank's Available Revolving Commitment less, in the
case of the Participating Lender, the Traded Proportion (as defined in
the Participation Agreement) of such commitment commission from day to
day during the period beginning on the date hereof and ending on the
Revolving Termination Date, such commitment commission to be calculated
at the rate of 0.875 per cent. per annum or if the events set out in
paragraph 2(b) of Schedule 12 (Margin Adjustment) occur, 1.00 per cent.
per annum and shall be payable in arrear on the last day (the "Payment
Date") of each successive period of three months which commences and ends
during such period and on the Revolving Termination Date; provided that
if the events set out in paragraph 2(b) of Schedule 12 (Margin
Adjustment) occur during the last four Business Days preceding the
Payment Date, the adjustment in the commitment commission shall commence
on the Payment Date.
26.3 Arrangement Fee
The Parent shall pay to the Facility Agent the fees specified in the
letter dated on or about the date hereof from the Lead Arrangers to the
Parent at the times, and in the amounts, specified in such letter.
26.4 Facility Agency and Security Agency Fee
The Parent shall pay to the Facility Agent and the Security Agent for its
own account the facility agency and security agency fees specified in the
letter dated on or about the date hereof from the Facility Agent and
Security Agent to the Obligors' Agent at the times, and in the amounts,
specified in such letter.
26.5 The Parent and the Borrowers, jointly and severally, shall pay to the
Facility Agent for the account of the EIF the Traded Proportion of the
commitment commission referred
to in Clause 26.1 and 26.2 on the Participated Portion of the Participating
Lender's Available Tranche A Term Commitment and Available Revolving
Commitment calculated and payable on the same days as it is calculated and
payable pursuant to Clause 26.1 and 26.2.
26.6 The Parent and the Borrowers, jointly and severally, shall pay the Facility
Agent for the account of EIF amounts falling due under Clauses 5.1 (Payment
of Interest), 7.1 (Payment of Interest) and 28.2 (Default Interest) in
accordance with, to the extent payable, the provisions of the Participation
Agreement (and such other documents entered into in connection therewith).
27. COSTS AND EXPENSES
27.1 Transaction Expenses
The Parent shall, from time to time within ten days of a written demand of
the Facility Agent, reimburse each of the Agents and each of the Lead
Arrangers for all reasonable costs and expenses (including legal fees)
together with any VAT thereon properly incurred by it in connection with
the negotiation, preparation and execution of the Credit Facility Documents
and the Participation Agreement, (including, without limitation, in respect
of the agreed fees and expenses of Analsys Inc. in connection with the
preparation of the Business Plan Report) and the completion of the
transactions therein contemplated as well as the costs of syndication (save
for any Transferee legal costs).
27.2 Preservation and Enforcement of Rights
The Parent shall, from time to time on demand of the Facility Agent,
reimburse the Finance Parties and the EIF for all costs and expenses
(including legal fees) on a full indemnity basis together with any VAT
thereon incurred in or in connection with the preservation and/or
enforcement of any of the rights of the Finance Parties and the EIF under
the Finance Documents and any document referred to in the Finance Documents
(including, for the avoidance of doubt, the Participation Agreement).
27.3 Stamp Taxes
The Parent shall pay all stamp, registration and other taxes to which the
Finance Documents, any other document referred to in the Finance Documents
(including, for the avoidance of doubt, the Participation Agreement) or any
judgment given in connection therewith is or at any time may be subject
(other than those imposed by reason of assignment or novation) and shall,
from time to time on demand of the Facility Agent, indemnify the Finance
Parties and the EIF against any liabilities, costs, claims and out of
pocket expenses resulting from any failure to pay or any delay in paying
any such tax.
27.4 Participants' Liabilities for Costs
If the Parent fails to perform any of its obligations under this Clause 27,
each Participant shall, in its Proportion, indemnify each of the Agents and
the Lead Arrangers against any loss incurred by any of them as a result of
such failure.
28. DEFAULT INTEREST AND BREAK COSTS
28.1 Default Interest Periods
If any sum due and payable by an Obligor hereunder is not paid on the due
date therefor in accordance with Clause 31 (Payments) or if any sum due and
payable by an Obligor under any judgment of any court in connection
herewith is not paid on the date of such judgment, the period beginning on
such due date or, as the case may be, the date of such judgment and ending
on the date upon which the obligation of such Obligor to pay such sum is
discharged shall be divided into successive periods, each of which (other
than the first) shall start on the last day of the preceding such period
and the duration of each of which shall (except as otherwise provided in
this Clause 28) be selected by the Facility Agent but which shall not be
more than three months.
28.2 Default Interest
An Unpaid Sum shall bear interest during each Interest Period in respect
thereof at the rate per annum which is one per cent. per annum above the
percentage rate which would apply to it if such Unpaid Sum had been an
Advance in the amount and currency of such Unpaid Sum and for the same
Interest Period, provided that if such Unpaid Sum relates to an Advance
which became due and payable on a day other than the last day of an
Interest Period or Term relating thereto:
28.2.1 the first Interest Period applicable to such Unpaid Sum shall be
of a duration equal to the unexpired portion of the current
Interest Period or Term relating to that Advance; and
28.2.2 the percentage rate of interest applicable thereto from time to
time during such period shall be that which exceeds by one per
cent. the rate which would have been applicable to it had it not
so fallen due, save that the Applicable Margin shall be, or be
deemed to be, the highest rate specified in the definition
thereof.
28.3 Payment of Default Interest
Any interest which shall have accrued under Clause 28.2 (Default Interest)
in respect of an Unpaid Sum shall be due and payable and shall be paid by
the Obligor owing such Unpaid Sum on the last day of each Interest Period
in respect thereof or on such other dates as the Facility Agent may specify
by notice to such Obligor.
28.4 Break Costs
If any Bank or the Facility Agent on its behalf receives or recovers all or
any part of such Bank's share of an Advance or Unpaid Sum otherwise than on
the last day of an Interest Period or Term relating thereto, the Parent
shall pay to the Facility Agent on demand for account of such Bank an
amount equal to the amount (if any) by which (a) the additional interest
which would have been payable on the amount so received or recovered had it
been received or recovered on the last day of that Interest Period or Term
exceeds (b) the amount of interest which in the reasonable opinion of the
Facility Agent would have been payable to the Facility Agent on the last
day of that Interest Period or Term in respect of a euro deposit equal to
the amount so received or
recovered placed by it with a prime bank in the European interbank market
for a period starting on the third Business Day following the date of such
receipt or recovery and ending on the last day of that Interest Period or
Term.
29. PARENT'S INDEMNITIES
29.1 Parent's Indemnity
The Parent undertakes to indemnify:
29.1.1 each Finance Party and the EIF against any cost, claim, loss,
expense (including legal fees reasonably incurred) or liability
together with any VAT thereon, which it may sustain or incur as a
consequence of the occurrence of any Event of Default or any
default in payment by any Obligor of any sum under the Credit
Facility Documents;
29.1.2 each Participant against any cost or loss it may suffer under
Clause 27.4 (Participants' Liabilities for Costs) or Clause 34.5
(Indemnification);
29.1.3 each Bank against any cost or loss it may suffer or incur as a
result of its funding or making arrangements to fund its portion
of an Advance requested by any Borrower but not made (other than
by reason of negligence or wilful default by the Facility Agent or
any Bank) by reason of the operation of any one or more of the
provisions hereof; and
29.1.4 each Bank against any cost or loss it may suffer or any reduction
in its return on capital that it would have been able to obtain
but for entering into or performing its obligations under this
Agreement as a result of any minimum reserve requirements imposed
on it by the European Central Bank in relation to an Advance or
funding an Advance.
Any amount payable by the Parent under this Clause 29.1 is payable within 5
Business Days of demand by the relevant Finance Party or, as the case may
be, the EIF. Any demand must be accompanied by available invoices and (in
the absence of invoices) a calculation in reasonable detail of the amount
so payable.
29.2 Indemnity to EIF
29.2.1 The Parent undertakes to:
(i) indemnify the EIF against each and every sum paid or
payable by the EIF under the Participation Agreement to
the extent such amount would be payable by the EIF
under the terms of the Participation Agreement in
effect on the Effective Date and the Parent shall pay
to the EIF forthwith upon demand an amount equal to
such sums; and
(ii) hold harmless the EIF on demand from and against all
actions, proceedings, liabilities, costs, claims,
losses, damages and reasonable expenses (including
legal fees reasonably incurred) (collectively, the
"Indemnified Amounts") which the EIF may at
any time incur or sustain in connection with or arising
out of the Participation Agreement other than any
Indemnified Amounts incurred, sustained or arising by
reason of the gross negligence or wilful misconduct of
the EIF.
29.2.2 Any demand must be accompanied by available invoices and (in the
absence of invoices) a calculation in reasonable detail of the
amount so payable.
29.2.3 This indemnity shall be a contractual obligation between the
Parent and the EIF which exists separately from and in addition to
any subrogation into the rights of the Banks that the EIF may be
entitled to (it being understood, for the avoidance of doubt, that
the EIF shall not be entitled to duplicate recoveries by reason of
this paragraph).
29.3 Currency Indemnity
If any sum (a "Sum") due from an Obligor under the Finance Documents or any
order or judgment given or made in relation thereto has to be converted
from the currency (the "First Currency") in which such Sum is payable into
another currency (the "Second Currency") for the purpose of:
29.3.1 making or filing a claim or proof against such Obligor;
29.3.2 obtaining or enforcing an order or judgment in any court or other
tribunal,
the Parent shall indemnify each person to whom such Sum is due from and
against any loss suffered or incurred as a result of any discrepancy
between (a) the rate of exchange used for such purpose to convert such Sum
from the First Currency into the Second Currency and (b) the rate or rates
of exchange available to such person at the time of receipt of such Sum.
30. CURRENCY OF ACCOUNT AND PAYMENT
The euro is the currency of account and payment for each and every sum at
any time due from an Obligor hereunder, provided that:
30.1.1 each payment in respect of costs and expenses shall be made in the
currency in which the same were incurred; and
30.1.2 each payment pursuant to Clause 15.2 (Tax Indemnity), Clause 15.3
(EIF Taxes), Clause 17.1 (Increased Costs) or Clause 29.1
(Parent's Indemnity) shall be made in the currency specified by
the party claiming thereunder.
31. PAYMENTS
31.1 Payments to the Facility Agent
On each date on which this Agreement requires an amount to be paid by an
Obligor, a Bank or the EIF, such Obligor, such Bank or, the EIF, as the
case may be, shall make the same available to the Facility Agent for value
on the due date at such time and in
such funds and to such account with such bank as the Facility Agent shall
specify from time to time.
31.2 Payments by the Facility Agent
31.2.1 Save as otherwise provided herein, each payment received by the
Facility Agent pursuant to Clause 31.1 (Payments to the Facility
Agent) shall:
(a) in the case of a payment received for the account of a
Borrower, be made available by the Facility Agent to such
Borrower by application:
(i) first, in or towards payment the same day of any amount
then due from such Borrower hereunder to the person
from whom the amount was so received; and
(ii) secondly, in or towards payment the same day to the
account of such Borrower as such Borrower shall have
previously notified to the Facility Agent for this
purpose; and
(b) in the case of any other payment, be made available by the
Facility Agent to the person entitled to receive such
payment in accordance with this Agreement or the
Participation Agreement (in the case of a Participant, for
the account of its Facility Office) for value the same day
by transfer to such account of such person with such bank in
Paris as such person shall have previously notified to the
Facility Agent.
31.2.2 A payment will be deemed to have been made by the Facility Agent
on the date on which it is required to be made under this
Agreement if the Facility Agent has, on or before that date, taken
steps to make that payment in accordance with the regulations or
operating procedures of the clearing or settlement system used by
the Facility Agent in order to make the payment.
31.3 No Set-off
All payments required to be made by an Obligor hereunder shall be
calculated without reference to any set-off or counterclaim and shall be
made free and clear of and without any deduction for or on account of any
set-off or counterclaim unless required by law.
31.4 Clawback
Where a sum is to be paid hereunder to the Facility Agent for account of
another person, the Facility Agent shall not be obliged to make the same
available to that other person until it has been able to establish to its
satisfaction that it has actually received such sum, but if it does so and
it proves to be the case that it had not actually received such sum, then
the person to whom such sum was so made available shall on request refund
the same to the Facility Agent together with an amount sufficient to
indemnify the Facility Agent against any cost or loss it may have suffered
or incurred by reason of its having paid out such sum prior to its having
received such sum.
31.5 Partial Payments
If and whenever a payment is made by an Obligor hereunder and the Facility
Agent receives an amount less than the due amount of such payment the
Facility Agent may apply the amount received towards the obligations of the
Obligors under this Agreement in the following order:
31.5.1 first, in or towards payment of any unpaid costs and expenses of
each of the Facility Agent and the Lead Arrangers due hereunder;
31.5.2 secondly, in or towards payment pro rata of any accrued interest
(including any element of such amounts payable to EIF) due but
unpaid including amounts payable in respect of accrued interest
due but unpaid pursuant to Clause 29.2 (Indemnity to EIF);
31.5.3 thirdly, in or towards payment pro rata of any principal due but
unpaid including amounts payable in respect of principal due but
unpaid pursuant to Clause 29.2 (Indemnity to EIF); and
31.5.4 fourthly, in or towards payment pro rata of any other sum due but
unpaid including amounts payable in respect of any other sum due
but unpaid pursuant to Clause 29.2 (Indemnity to EIF).
31.6 Variation of Partial Payments
The order of partial payments set out in Clause 31.5 (Partial Payments)
shall override any appropriation made by the Obligor to which the partial
payment relates but the order set out in sub-clauses 31.5.2, 31.5.3 and
31.5.4 of Clause 31.5 (Partial Payments) may be varied if agreed by all the
Participants.
31.7 Business Days
31.7.1 Any payment or conversion of Advances hereunder which is due to be
made on a day that is not a Business Day shall be made on the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
31.7.2 During any extension of the due date for payment of any principal
or an Unpaid Sum under this Agreement interest is payable on the
principal at the rate payable on the original due date.
32. SET-OFF
32.1 Contractual Set-off
If an Event of Default has occurred and is continuing, each Obligor
authorises each Participant to apply any credit balance to which such
Obligor is entitled on any account of such Obligor with such Participant in
satisfaction of any sum due and payable from such Obligor to such
Participant under the Finance Documents but unpaid. For this purpose, each
Participant is authorised to purchase with the moneys standing to the
credit of any such account such other currencies as may be necessary to
effect such
application. Each Participant shall notify the Obligor's Agent (giving full
details) forthwith upon the exercise or purported exercise of any right of
set off.
32.2 Set-off not Mandatory
No Participant shall be obliged to exercise any right given to it by Clause
32.1 (Contractual Set-off).
33. SHARING
33.1 Payments to Participants
If a Participant (a "Recovering Bank") applies any receipt or recovery from
an Obligor to a payment due under this Agreement and such amount is
received or recovered other than in accordance with Clause 31 (Payments),
then such Recovering Bank shall:
33.1.1 notify the Facility Agent of such receipt or recovery;
33.1.2 at the request of the Facility Agent, promptly pay to the Facility
Agent an amount (the "Sharing Payment") equal to such receipt or
recovery less any amount which the Facility Agent determines may
be retained by such Recovering Bank as its share of any payment to
be made in accordance with Clause 31.5 (Partial Payments).
33.2 Redistribution of Payments
The Facility Agent shall treat the Sharing Payment as if it had been paid
by the relevant Obligor and distribute it between the Finance Parties and
the EIF (other than the Recovering Bank) in accordance with Clause 31.5
(Partial Payments).
33.3 Recovering Bank's Rights
The Recovering Bank will be subrogated into the rights of the parties which
have shared in a redistribution pursuant to Clause 33.2 (Redistribution of
Payments) in respect of the Sharing Payment (and the relevant Obligor shall
be liable to the Recovering Bank in an amount equal to the Sharing
Payment).
33.4 Repayable Recoveries
If any part of the Sharing Payment received or recovered by a Recovering
Bank becomes repayable and is repaid by such Recovering Bank, then:
33.4.1 each party which has received a share of such Sharing Payment
pursuant to Clause 33.2 (Redistribution of Payments) shall, upon
request of the Facility Agent, pay to the Facility Agent for
account of such Recovering Bank an amount equal to its share of
such Sharing Payment; and
33.4.2 such Recovering Bank's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable to the reimbursing party for the amount so reimbursed.
33.5 Exception
This Clause 33 shall not apply if the Recovering Bank would not, after
making any payment pursuant hereto, have a valid and enforceable claim
against the relevant Obligor.
33.6 Recoveries Through Legal Proceedings
If any Participant intends to commence any action in any court it shall
give prior notice to the Facility Agent and the other Participants. If any
Participant shall commence any action in any court to enforce its rights
hereunder and, as a result thereof or in connection therewith, receives any
amount, then such Participant shall not be required to share any portion of
such amount with any Participant which has the legal right to, but does
not, join in such action or commence and diligently prosecute a separate
action to enforce its rights in another court.
34. the Facility Agent, the Lead Arrangers and the Participants
34.1 Appointment of the Facility Agent
Each of the Lead Arrangers and the Participants hereby appoints the
Facility Agent to act as its Facility Agent in connection herewith and
authorises the Facility Agent to exercise such rights, powers, authorities
and discretions as are specifically delegated to the Facility Agent by the
terms hereof together with all such rights, powers, authorities and
discretions as are reasonably incidental thereto.
34.2 Facility Agent's Discretions
The Facility Agent may:
34.2.1 assume, unless it has, in its capacity as Facility Agent for the
Participants, received notice to the contrary from any other party
hereto, that (a) any representation made or deemed to be made by
an Obligor in connection with the Credit Facility Documents is
true, (b) no Event of Default or Potential Event of Default has
occurred, (c) no Obligor is in breach of or default under its
obligations under the Credit Facility Documents and (d) any right,
power, authority or discretion vested herein upon an Instructing
Group, the Participants or any other person or group of persons
has not been exercised;
34.2.2 assume that (a) the Facility Office of each Participant is that
notified to it by such Participant in writing and (b) the
information provided by each Participant pursuant to Clause 40
(Notices), Clause 34.14 (Banks' Mandatory Cost Details) and
Schedule 11 (Mandatory Costs) is true and correct in all respect
until it has received from such Participant notice of a change to
the Facility Office or any such information and act upon any such
notice until the same is superseded by a further notice;
34.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services
may to it seem necessary, expedient or desirable and rely upon any
advice so obtained;
34.2.4 rely as to any matters of fact which might reasonably be expected
to be within the knowledge of an Obligor upon a certificate signed
by or on behalf of such Obligor;
34.2.5 rely upon any communication or document believed by it to be
genuine;
34.2.6 refrain from exercising any right, power or discretion vested in
it as Facility Agent hereunder unless and until instructed by an
Instructing Group as to whether or not such right, power or
discretion is to be exercised and, if it is to be exercised, as to
the manner in which it should be exercised;
34.2.7 refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding arising
out of or in connection with this Agreement until it shall have
received such security as it may require (whether by way of
payment in advance or otherwise) for all costs, claims, losses,
expenses (including legal fees) and liabilities together with any
VAT thereon which it will or may expend or incur in complying with
such instructions;
34.2.8 assume that the rate as expressed to be the Official Rate in any
Notice of Drawdown is accurate as of the proposed date of the
Advance requested therein; and
34.2.9 assume (unless it has specific notice to the contrary) that any
notice or request made by the Obligors' Agent is made on behalf of
all the Obligors.
34.3 Facility Agent's Obligations
The Facility Agent shall:
34.3.1 promptly inform each Participant of the contents of any notice or
document received by it in its capacity as Facility Agent from an
Obligor under the Finance Documents;
34.3.2 promptly notify each Participant of the occurrence of any Event of
Default or any default by an Obligor in the due performance of or
compliance with its obligations under the Credit Facility
Documents of which the Facility Agent has notice from any other
party hereto;
34.3.3 save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an Instructing
Group, which instructions shall be binding on the Lead Arrangers
and the Participants; and
34.3.4 if so instructed by an Instructing Group, refrain from exercising
any right, power or discretion vested in it as Facility Agent
hereunder.
The Facility Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
34.4 Excluded Obligations
Notwithstanding anything to the contrary expressed or implied herein,
neither the Facility Agent nor any of the Lead Arrangers shall:
34.4.1 be bound to enquire as to (a) whether or not any representation
made or deemed to be made by an Obligor in connection with the
Credit Facility Documents is true, (b) the occurrence or otherwise
of any Event of Default or Potential Event of Default, (c) the
performance by an Obligor of its obligations under the Credit
Facility Documents or (d) any breach of or default by an Obligor
of or under its obligations under the Credit Facility Documents;
34.4.2 be bound to account to any Participant for any sum or the profit
element of any sum received by it for its own account;
34.4.3 be bound to disclose to any other person any information relating
to any member of the Group if (a) such person, on providing such
information, expressly stated to the Facility Agent or, as the
case may be, the Lead Arrangers, that such information was
confidential or (b) such disclosure would or might in its opinion
constitute a breach of any law or be otherwise actionable at the
suit of any person;
34.4.4 be under any obligations other than those for which express
provision is made herein; or
34.4.5 be or be deemed to be a fiduciary for any other party hereto.
34.5 Indemnification
Each Participant shall, in its Proportion, from time to time on demand by
the Facility Agent, indemnify the Facility Agent against any and all costs,
claims, losses, expenses (including legal fees) and liabilities together
with any VAT thereon which the Facility Agent may incur, otherwise than by
reason of its own gross negligence or wilful misconduct, in acting in its
capacity as facility agent hereunder (other than any which have been
reimbursed by the Parent pursuant to Clause 29.1 (Parent's Indemnity)).
34.6 Exclusion of Liabilities
None of the Facility Agent and the Lead Arrangers accepts any
responsibility:
34.6.1 for the adequacy, accuracy and/or completeness of the Information
Memorandum or any other information supplied by the Facility Agent
or the Lead Arrangers, by an Obligor or by any other person in
connection with the Credit Facility Documents or any other
agreement, arrangement or document entered into, made or executed
in anticipation of, pursuant to or in connection with the Credit
Facility Documents;
34.6.2 for the legality, validity, effectiveness, adequacy or
enforceability of the Credit Facility Documents or any other
agreement, arrangement or document
entered into, made or executed in anticipation of, pursuant to
or in connection with the Credit Facility Documents; or
34.6.3 for the exercise of, or the failure to exercise, any judgement,
discretion or power given to any of them by or in connection
with the Credit Facility Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the Credit
Facility Documents.
Accordingly, none of the Facility Agent and the Lead Arrangers shall be
under any liability in respect of such matters, save in the case of gross
negligence or wilful misconduct.
34.7 No Actions
Each of the Participants agree that it will not assert or seek to assert
against any director, officer or employee of the Facility Agent or any
Lead Arranger any claim it might have against any of them in respect of
the matters referred to in Clause 34.6 (Exclusion of Liabilities).
34.8 Business with the Group
The Facility Agent and each of the Lead Arrangers may accept deposits
from, lend money to and generally engage in any kind of banking or other
business with any member of the Group.
34.9 Resignation
The Facility Agent may (after consultation with the Obligors' Agent)
resign its appointment hereunder at any time without assigning any reason
therefor by giving not less than thirty days' prior written notice to
that effect to each of the other parties hereto, provided that no such
resignation shall be effective until a successor for such Facility Agent
is appointed in accordance with the succeeding provisions of this Clause
34.
34.10 Removal of Facility Agent
An Instructing Group may with the prior written consent of the Obligors'
Agent (such consent not to be unreasonably withheld) remove the Facility
Agent from its role as facility agent hereunder by giving notice to that
effect to each of the other parties hereto. Such removal shall take
effect only when a successor to the Facility Agent is appointed in
accordance with the terms hereof.
34.11 Successor Facility Agent
If the Facility Agent gives notice of its resignation pursuant to Clause
34.9 (Resignation) or the Facility Agent is removed pursuant to Clause
34.10 (Removal of Facility Agent) then any reputable and experienced bank
or other financial institution may be appointed as a successor Facility
Agent provided that, (i) in the case of Clause 34.9 (Resignation) such
successor is a Bank selected by the resigning Facility Agent or, if not a
Bank, is a financial institution selected with the prior consent of the
Obligors' Agent; and (ii) in the case of Clause 34.10 (Removal of
Facility Agent) such
successor is appointed with the prior written consent of the Obligors'
Agent (such consent not to be unreasonably withheld).
34.12 Rights and Obligations
If a successor to the Facility Agent is appointed under the provisions of
Clause 34.11 (Successor Facility Agent), then (a) the retiring or
departing Facility Agent shall be discharged from any further obligation
hereunder but shall remain entitled to the benefit of the provisions of
this Clause 34 and (b) its successor and each of the other parties hereto
shall have the same rights and obligations amongst themselves as they
would have had if such successor had been a party hereto.
34.13 Own Responsibility
It is understood and agreed by each Participant that at all times it has
itself been, and will continue to be, solely responsible for making its
own independent appraisal of and investigation into all risks arising
under or in connection with the Credit Facility Documents including, but
not limited to:
34.13.1 the financial condition, creditworthiness, condition, affairs,
status and nature of each member of the Group;
34.13.2 the legality, validity, effectiveness, adequacy and
enforceability of the Credit Facility Documents and any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with
the Credit Facility Documents;
34.13.3 whether such Participant has recourse, and the nature and extent
of that recourse, against an Obligor or any other person or any
of their respective assets under or in connection with the
Credit Facility Documents, the transactions therein contemplated
or any other agreement, arrangement or document entered into,
made or executed in anticipation of, pursuant to or in
connection with the Credit Facility Documents; and
34.13.4 the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Facility
Agent or the Lead Arrangers, an Obligor, or by any other person
in connection with the Finance Documents, the transactions
contemplated therein or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with the Credit Facility Documents.
Accordingly, each Participant acknowledges to the Facility Agent and the
Lead Arrangers that it has not relied on and will not hereafter rely on
the Facility Agent and the Lead Arrangers or any of them in respect of
any of these matters.
34.14 Banks' Mandatory Cost Details
Each Bank will supply the Facility Agent with such information and in
such detail as the Facility Agent may require in order to calculate the
Mandatory Cost Rate in accordance with Schedule 11 (Mandatory Costs).
34.15 Agency Division Separate
In acting as Facility Agent hereunder for the Participants, the Facility
Agent shall be regarded as acting through its agency division which shall
be treated as a separate entity from any other of its divisions or
departments and, notwithstanding the foregoing provisions of this Clause
34, any information received by some other division or department of the
Facility Agent may be treated as confidential and shall not be regarded
as having been given to the Facility Agent's agency division.
35. ASSIGNMENTS AND TRANSFERS
35.1 Binding Agreement
The Finance Documents shall be binding upon and enure to the benefit of
each party hereto and its or any subsequent successors and Transferees.
35.2 No Assignments and Transfers by the Obligors
No Obligor shall be entitled to assign or transfer all or any of its
rights and obligations under the Credit Facility Documents other than
pursuant to a merger in accordance with Clause 23.17 (Mergers).
35.3 Assignment and Transfers by Participants
Any Bank may, at any time, assign all or any of its rights in respect of
its Exposure (in an amount equal to or greater than (Euro) 2,500,000
(except for an assignment or transfer by the Participating Lender to EIF
which may be of lesser amounts) hereunder or any Participant may, at any
time, transfer in accordance with Clause 35.5 (Transfers by Participants)
all or any part of its Exposure, rights and obligations hereunder to a
Qualifying Bank or to the EIF, in each case provided that:
35.3.1 after the Syndication Date and unless an Event of Default has
occurred and is continuing, it has obtained the prior consent of
the Parent, such consent not to be unreasonably withheld or
delayed;
35.3.2 the assignee or transferee is, on the effective date of the
assignment or transfer, a Qualifying Bank or is the EIF;
35.3.3 if the assignment or transfer is by a Bank of all or any part of
the Participated Portion of such Bank's rights and obligations as
a Participating Lender, it has obtained the prior consent of the
EIF, such consent not to be unreasonably withheld or delayed;
35.3.4 such assignment or transfer will not, as a consequence of laws or
regulations in force at that time, result in any amount being
required to be prepaid under Clause 18 (Illegality);
35.3.5 the proposed assignees or transferee would not be entitled to
receive (i) any payment under Clause 15 (Taxes); or (ii) a greater
payment under Clause 17 (Increased Costs) than the assigning or
transferring Participant would have been entitled to receive on
such date under such Clauses with respect to the rights and/or
obligations assigned or transferred; and
35.3.6 any assignment or transfer shall be pro rata across the Tranche A
Term Facility and Tranche B Revolving Facility, or as the case may
be the Tranche A Term Facility, Tranche B Term Facility and the
Working Capital Facility other than an assignment or transfer by
the Participating Lender to EIF in accordance with the provisions
of the Participation Agreement,
and no Obligor shall be obliged to pay any amount under Clause 15 (Taxes)
or which it would not otherwise have been obliged to pay hereunder as a
result of any assignment or transfer by any Participant which does not
comply with the requirements of this Clause 35.3. The Participating Lender
shall not increase the aggregate amount of the Loan which benefits from
the risk participation assumed by the EIF pursuant to the Participation
Agreement as of the Effective Date without the prior consent of the
Parent, such consent not to be unreasonably withheld. For the avoidance of
doubt, this shall not limit the ability of any Participating Lenders to
assign or transfer all or any part of the Participated Portion of such
Participant's rights and obligations to another Participant as long as it
satisfies the conditions in Clause 35.3.
35.4 Assignments by Banks
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with Clause 35.3 (Assignments and
Transfers by Participants), then, unless and until the assignee has
delivered a notice to the Facility Agent confirming in favour of the
Facility Agent, the Lead Arrangers and the other Participants that it
shall be under the same obligations towards each of them as it would have
been under if it had been an original party hereto as a Bank (whereupon
such assignee shall become a party hereto as a "Bank"), the Facility
Agent, the Lead Arrangers and the other Participants shall not be obliged
to recognise such assignee as having the rights against each of them which
it would have had if it had been such a party hereto.
35.5 Transfers by Participants
35.5.1 If any Participant wishes to transfer all or any part of its
Exposure or of its rights, benefits and/or obligations as a
Participating Lender under the Finance Documents and, in the case
of a Participating Lender and the EIF, under the Participation
Agreement as contemplated in Clause 35.3 (Assignments and
Transfers by Participants) to a Qualifying Bank then such transfer
may be effected by the delivery to the Facility Agent of a duly
completed Transfer Certificate executed by such Participant, the
relevant Transferee and, in the case of a transfer by the EIF, the
Participating Lenders, and such transfer shall take effect in
accordance with sub-clause 35.5.2 of this Clause 35.5, on the
later of the Transfer Date specified in such Transfer Certificate
and the fifth Business Day after (or such earlier Business Day
endorsed by the Facility Agent on such Transfer Certificate
falling on or after) the date of delivery of such Transfer
Certificate to the Facility Agent.
35.5.2 Any transfer pursuant to a Transfer Certificate shall take effect
as follows:
(a) in the case of a transfer by a Bank of an Exposure to a
Transferee participating as a Bank:
(i) an assignment to the Transferee by such Bank of its rights under
the Finance Documents in relation to the transferred Exposure;
and
(ii) a transfer to and assumption by the Transferee of such Bank's
obligations under the Finance Documents in relation to the
transferred Exposure, such Bank being released from such
obligations to the extent of such Exposure;
(b) in the case of a transfer by a Bank of all or any of its rights and
obligations as a Participating Lender to a Transferee participating as
a Participating Lender:
(i) an assignment to the Transferee by such Bank of the rights of
such Bank under the Finance Documents and the Participation
Agreement in relation to the share of such Bank's Participated
Portion of the Facilities to be transferred; and
(ii) a transfer to and assumption by the Transferee of such Bank's
obligations under the Finance Documents and the Participation
Agreement in relation to the share of such Bank's Participated
Portion of the Facilities to be transferred, such Bank being
released from such obligations to the extent of the Participated
Portion being transferred;
(c) in the case of a transfer by the EIF of an Exposure to a Transferee
participating as a Bank:
(i) an assignment to the Transferee by each Participating Lender of
such Participating Lender's rights under the Finance Documents
in respect of any part of such Participating Lender's
Participated Portion of the Facilities corresponding to the
transferred Exposure;
(ii) a transfer to and assumption by the Transferee of each
Participating Lender's obligations under the Finance Documents
in respect of any part of such Participating Lender's
Participated Portion of the Facilities corresponding to the
transferred Exposure such Participating Lender being released
from such obligations to the extent of such Participated
Portion; and
(iii) a release of the respective rights and obligations inter se of
each Participating Lender and the EIF under the Participation
Agreement corresponding to the transferred Exposure; and
(d) in the case of each transfer pursuant to paragraphs (i) , (ii) or (iii)
of sub-clause 35.5.2(a), (b) and (c):
(i) the Facility Agent, the Lead Arrangers, the Transferee and the
other Participants shall acquire the same rights and benefits
and
assume the same obligations between themselves as they
would have acquired and assumed had the Transferee
been an original party hereto as a Bank with the
rights and/or obligations acquired or assumed by it as
a result of such transfer and to that extent the
Facility Agent, the Lead Arrangers and the relevant
Participant shall each be released from further
obligations to each other under the Finance Documents;
and
(ii) such Transferee shall become a party hereto as a
"Bank".
35.5.3 Each Transfer Certificate shall identify in relation to each
transfer contemplated thereby:
(a) the transferring Participant;
(b) the principal amount of the Exposure or the rights and
obligations to be transferred by it;
(c) if they are held by it as a Bank, whether or not they form
part of a Participated Portion;
(d) if they are held by the EIF, the identity of any Participated
Lender to whose Participated Portion they relate and, if
there is more than one such Participating Lender, the
respective principal amounts of the portions of the Exposure
to be transferred relating to their respective Participated
Portions;
(e) the Transferee; and
(f) if they are to be received by it as a Participating Lender,
the principal amount to form part of a Participated Portion.
35.6 Assignment and Transfer Fees
On any date after the Syndication Date upon which an assignment takes
effect pursuant to Clause 35.4 (Assignments by Banks) or a transfer takes
effect pursuant to Clause 35.5 (Transfers by Participants) the relevant
assignee or Transferee shall pay to the Facility Agent for its own account
a fee of (Euro) 2,000.
35.7 Disclosure of Information
Any Participant may, having obtained the prior consent of the Parent (such
consent not to be unreasonably withheld or delayed) disclose to any
person:
35.7.1 to (or through) whom such Participant assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under the Finance Documents or, in the case of the
EIF, the Participation Agreement;
35.7.2 with (or through) whom such Participant enters into (or may
potentially enter into) any sub-participation in relation to, or
any other transaction under which
payments are to be made by reference to, the Finance Documents or
any Obligor; or
35.7.3 to whom information may be required to be disclosed by any
applicable law,
such information about any Obligor or the Group and the Finance Documents
as such Participant shall consider reasonably appropriate subject to the
prospective person referred to in sub-clause 35.7.1 and 35.7.2 first
entering into a confidentiality undertaking.
35.8 Notification
The Facility Agent shall within five Business Days of receiving a Transfer
Certificate notify the Obligors' Agent of any assignment or transfer
completed pursuant to this Clause 35.
36. ADDITIONAL BORROWERS
36.1 Request for Additional Borrower
The Parent may request that any of its direct or indirect wholly-owned
subsidiaries become an Additional Borrower by delivering to the Facility
Agent a Borrower Accession Memorandum duly executed by the Obligors' Agent
and such subsidiary, together with the documents and other evidence listed
in Schedule 9 (Additional Conditions Precedent) in relation to such
subsidiary.
36.2 Borrower Conditions Precedent
A subsidiary, in respect of which the Obligors' Agent has delivered a
Borrower Accession Memorandum to the Facility Agent, shall become an
Additional Borrower and assume all the rights, benefits and obligations of
a Borrower as if it had been an Original Borrower on the Business Day
following the date on which the Facility Agent notifies the Obligors'
Agent (copied to each of the Participants) that:
36.2.1 an Instructing Group has accepted the Obligors' Agent's request in
respect of such subsidiary (other than where the Obligors' Agent
has certified to the Facility Agent that the purpose of such
subsidiary acceding as an Additional Borrower is solely for good
faith and reasonable tax or treasury management purposes); and
36.2.2 it has received, in form and substance reasonably satisfactory to
it, all documents and other evidence listed in Schedule 9
(Additional Conditions Precedent) in relation to such subsidiary,
unless on such date an Event of Default or Potential Event of Default is
continuing or would occur as a result of such subsidiary becoming an
Additional Borrower.
37. ADDITIONAL GUARANTORS
37.1 Request for Additional Guarantor
The Obligors' Agent may request that any of the Parent's subsidiaries
become an Additional Guarantor by delivering to the Facility Agent a
Guarantor Accession
Memorandum duly executed by the Obligors' Agent and such subsidiary,
together with the documents and other evidence listed in Schedule 9
(Additional Conditions Precedent) in relation to such subsidiary.
37.2 Guarantor Conditions Precedent
A company, in respect of which the Obligors' Agent has delivered a
Guarantor Accession Memorandum to the Facility Agent, shall became an
Additional Guarantor and assume all the rights, benefits and obligations
of a Guarantor as if it had been an original party hereto as a Guarantor
on the date on which the Facility Agent notifies the Obligors' Agent that
it has received, in form and substance reasonably satisfactory to it, all
the documents and other evidence listed in Schedule 9 (Additional
Conditions Precedent).
37.3 Resignation of CompleTel SPC II as an Original Guarantor
CompleTel SPC II shall cease to be an Original Guarantor and shall be
released from all its obligations under this Agreement and any of the
Security Documents to which it is a party on the date that the Facility
Agent confirms to it that the Facility Agent has received from CompleTel
SPC II a letter confirming that the circumstances set out in sub-Clause
37.3.1 are true and correct as at the date thereof and requesting its
resignation as an Original Guarantor, provided that on such date:
37.3.1 CompleTel GmbH is a direct wholly owned subsidiary of an Obligor
(other than CompleTel SPC II) and that all the shares in CompleTel
GmbH are secured substantially on the terms of the Security
Document dated at or around the date hereof entered into by
CompleTel Holding I BV and CompleTel SPC II in relation to its
shares in CompleTel GmbH.
Each of the Security Agent and the Facility Agent shall as soon as
reasonably practicable execute and do all such assurances, acts or things
as the Obligors' Agent acting in good faith may reasonably require to
release CompleTel SPC II from its obligations under this Agreement and the
Security Documents to which it is a party; provided that CompleTel SPC II
has indemnified each of the Security Agent and the Facility Agent for all
costs and expenses (including legal fees) together with VAT thereon, as
reasonably determined by them, to be incurred in connection therewith.
38. CALCULATIONS AND EVIDENCE OF DEBT
38.1 Basis of Accrual
Interest and commitment commission shall accrue from day to day and shall
be calculated on the basis of a year of 360 days (or, in any case where
market practice differs, in accordance with market practice) and the
actual number of days elapsed.
38.2 Quotations
If on any occasion a Reference Bank or Participant fails to supply the
Facility Agent with a quotation required of it under the foregoing
provisions of this Agreement, the rate for which such quotation was
required shall be determined from those quotations which are supplied to
the Facility Agent, provided that, in relation to determining
EURIBOR, this Clause 38.2 shall not apply if only one Reference Bank
supplies a quotation.
38.3 Evidence of Debt
Each Participant shall maintain in accordance with its usual practice
accounts evidencing the amounts from time to time lent by and owing to it
hereunder.
38.4 Control Accounts
The Facility Agent shall maintain on its books a control account or
accounts in which shall be recorded (a) the amount of any Advance or any
Unpaid Sum and each Participant's share therein, (b) the amount of all
principal, interest and other sums due or to become due from an Obligor
and each Participant's share therein and (c) the amount of any sum
received or recovered by the Facility Agent hereunder and each
Participant's share therein.
38.5 Prima Facie Evidence
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 38.3 (Evidence of Debt) and Clause 38.4 (Control Accounts) shall,
in the absence of manifest error, be prima facie evidence of the existence
and amounts of the specified obligations of the Obligors.
38.6 Certificates of Participants
A certificate of a Participant as to (a) the amount by which a sum payable
to it hereunder is to be increased under Clause 15.1 (Tax Gross-up) or
Clause 15.3 (EIF Taxes), (b) the amount for the time being required to
indemnify it against any such cost, payment or liability as is mentioned
in Clause 15.2 (Tax Indemnity), Clause 17.1 (Increased Costs) or Clause
29.1 (Parent's Indemnity) or Clause 29.2 (Indemnity to EIF) or (c) the
amount of any credit, relief, remission or repayment as is mentioned in
Clause 16.3 (Tax Credit Payment) or Clause 16.4 (Tax Credit Clawback)
shall, in the absence of manifest error, be prima facie evidence of the
existence and amounts of the specified obligations of the Obligors.
38.7 Facility Agent's Certificates
A certificate of the Facility Agent as to the amount at any time due from
a Borrower or the Parent hereunder or the amount which, but for any of the
obligations of such Borrower or the Parent hereunder being or becoming
void, voidable, unenforceable or ineffective, at any time would have been
due from such Borrower hereunder shall, in the absence of manifest error,
be conclusive for the purposes of Clause 25 (Guarantee and Indemnity).
39. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
39.1 Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party and/or the EIF, any right or remedy under the Finance
Documents shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy prevent any further or other
exercise thereof or the exercise of any other right or remedy. The
rights and remedies herein provided are cumulative and not exclusive of
any rights or remedies provided by law.
39.2 Partial Invalidity
If, at any time, any provision of the Credit Facility Documents is or
becomes illegal, invalid or unenforceable in any respect under the law of
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions thereof nor the legality, validity or enforceability
of such provision under the law of any other jurisdiction shall in any way
be affected or impaired thereby.
40. NOTICES
40.1 Communications in Writing
Each communication to be made under the Credit Facility Documents shall be
made in writing and, unless otherwise stated, shall be made by fax or
letter.
40.2 Addresses
Any communication or document to be made or delivered pursuant to this
Agreement shall (unless the recipient of such communication or document
has, by fifteen days' written notice to the Facility Agent, specified
another address or fax number) be made or delivered to the address or fax
number:
40.2.1 in the case of the Original Obligors, of the Obligors' Agent
identified below for the attention of Hugues Lemasne and Xxxxx
Xxxxx, with a copy to Xxxx Xxxxxx;
40.2.2 in the case of the Facility Agent, identified with its name below;
40.2.3 in the case of each Bank, notified in writing to the Facility
Agent prior to the date hereof (or, in the case of a Transferee,
at the end of the Transfer Certificate to which it is a party as
Transferee);
40.2.4 in the case of the EIF, notified in writing to the Facility Agent
prior to the date of the Amendment Agreement; and
40.2.5 in the case of each Additional Guarantor or Additional Borrower,
in the relevant Guarantor Accession Memorandum or Borrower
Accession Memorandum
provided that not more than one address may be specified by each party
pursuant to this Clause 40.2 at any time.
40.3 Delivery
Any communication or document to be made or delivered by one person to
another pursuant to the Credit Facility Documents shall:
40.3.1 if by way of fax, be deemed to have been received on receipt of an
answer back unless the date of despatch is not a working day or
after business hours
in the place of receipt in which case it shall be deemed to have
been received at the opening of business on the next such working
day; and
40.3.2 if by way of letter, be deemed to have been delivered on receipt
of a return receipt if sent by registered mail or if sent by
courier,
provided that any communication or document to be made or delivered to an
Agent shall be effective only when received by its agency division and
then only if the same is expressly marked for the attention of the
department or officer identified with that Agent's signature below (or
such other department or officer as that Agent shall from time to time
specify for this purpose).
40.4 English Language
Each communication and document made or delivered by one party to another
pursuant to the Credit Facility Documents shall be in the English language
or in the event that such communication or document attaches a document
originally prepared in a language other than English, the delivery of such
document in its original language shall satisfy the requirements of this
Clause 40.4, provided that if reasonably requested by the Agent in writing
an English translation certified (by an officer of the person making or
delivering the same) as being a true and accurate translation thereof is
delivered within 45 Business Days thereof.
40.5 Notification of Changes
Promptly upon receipt of notification of a change of address or fax number
pursuant to Clause 40.2 (Addresses) or changing its own address or fax
number the Facility Agent shall notify the other parties hereto of such
change.
40.6 Deemed Receipt by the Obligors
Any communication or document made or delivered to the Obligors' Agent in
accordance with Clause 40.3 (Delivery) shall be deemed to have been made
or delivered to each of the Obligors.
41. COUNTERPARTS
This Agreement may be executed in any number of counterparts with
different parties executing different counterparts, all of which taken
together shall constitute one and the same instrument.
42. AMENDMENTS
42.1 Amendments
If the Facility Agent has the prior consent of an Instructing Group (or if
and to the extent expressly authorised), the Facility Agent and the
Obligors may from time to time agree in writing to amend any Finance
Documents or to waive, prospectively or retrospectively, any of the
requirements of any Finance Document and any amendments or waivers so
agreed shall be binding on all the Finance Parties and the EIF, provided
that no such amendment or waiver shall result in any Bank which has a
Revolving Commitment being required to participate in a Revolving Advance
unless
the consent of Banks with Revolving Commitments exceeding sixty-six and
two thirds per cent. of the aggregate of Revolving Commitments has been
obtained.
42.2 Amendments Requiring the Consent of all the Participants
An amendment or waiver which relates to:
42.2.1 Clause 33 (Sharing) or this Clause 42;
42.2.2 an increase in the principal amount of or a change in currency of
any Advance, or deferral of the Conversion Date, any Term
Repayment Date or Repayment Date, Revolving Termination Date or
the Tranche A Term Availability Period;
42.2.3 a reduction in the Applicable Margin, the amount or currency of
any payment of interest, fees or any other amount payable
hereunder to any Finance Party or the EIF or deferral of the date
for payment thereof;
42.2.4 a release of any Guarantor from any of its obligations set out in
Clause 25 (Guarantee and Indemnity) except as permitted under the
terms of the Finance Documents;
42.2.5 Clause 36 (Additional Borrowers) or Clause 37 (Additional
Guarantors);
42.2.6 the definition of Instructing Group;
42.2.7 an increase in Commitment;
42.2.8 any release of any security constituted by any of the Security
Documents except as permitted under the terms of the Finance
Documents; or
42.2.9 any provision which expressly requires the consent or approval of
all the Banks or, as the case may be, Participants, shall not be
made without the prior consent of all the Banks or, as the case
may be, Participants.
42.3 Exceptions
Notwithstanding any other provisions hereof, the Facility Agent shall not
be obliged to agree to any such amendment or waiver if the same would:
42.3.1 amend or waive this Clause 42, Clause 27 (Costs and Expenses) or
Clause 34 (The Facility Agent, The Lead Arrangers and The
Participants); or
42.3.2 otherwise amend or waive any Agent's rights hereunder or subject
any Agent or the Lead Arrangers to any additional obligations
hereunder;
42.3.3 An amendment or waiver which relates to Clause 45 shall not be
made without the prior consent of the EIF.
43. GOVERNING LAW
This Agreement shall be governed by English law.
44. JURISDICTION
44.1 English Courts
The courts of England have exclusive jurisdiction to settle any dispute (a
"Dispute") arising out of or in connection with this Agreement (including
a dispute regarding the existence, validity or termination of this
Agreement or the consequences of its nullity).
44.2 Convenient Forum
The parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes between them and, accordingly, that
they will not argue to the contrary.
44.3 Non-Exclusive Jurisdiction
Each of the parties agree for the benefit of each of the other parties, as
a result and notwithstanding Clause 44.1 (English Courts), that it does
not prevent any Finance Party, the EIF or any Obligor from taking
proceedings relating to a Dispute ("Proceedings") in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties, the EIF
or, as the case may be, the Obligors may take concurrent Proceedings in
any number of jurisdictions.
44.4 Service of Process
Each Original Obligor agrees that the documents which start any
Proceedings and any other documents required to be served in relation to
those Proceedings may be served on it:
44.4.1 in the case of each Original Borrower, on HRO Registrars Limited
at present of Xxxxxxxxx Xxxxx, 00 Xxxxxx Xxx, Xxxxxx X0X 0XX or,
if different, its registered office.
44.4.2 in the case of each Original Guarantor, on HRO Registrars Limited
at present of Xxxxxxxxx Xxxxx, 00 Xxxxxx Xxx, Xxxxxx X0X 0XX or,
if different, its registered office.
If any Original Obligor ceases to have a place of business in Great
Britain or, as the case may be, the appointment of the person mentioned in
this Clause 44.4 ceases to be effective, the relevant Original Obligor
shall immediately appoint another person in England to accept service of
process on its behalf in England. If an Original Obligor fails to do so
(and such failure continues for a period of not less than fourteen days),
the Facility Agent shall be entitled to appoint such a person by notice to
such Original Obligor. Nothing contained herein shall restrict the right
to serve process in any other manner allowed by law. This Clause 44.4
applies to Proceedings in England and to Proceedings elsewhere.
45. EIF Risk Participation
45.1 Obligors' Acknowledgement
The Obligors hereby acknowledge that the EIF, under and in accordance with
the terms of the Participation Agreement, will assume obligations to one
or more Participating Lenders under the Participation Agreement whereby
demand may be made by such Participating Lenders for payment by the EIF of
amounts corresponding to certain amounts due from but unpaid by the
Borrowers to such Participating Lenders under the Finance Documents in
relation to the Participated Portion to which the EIF's obligations to
such Participating Lenders relate.
45.2 Obligations not reduced
The obligations of the Obligors shall not be reduced by any obligation of,
or any amount paid or payable by, the EIF under the Participation
Agreement, and an Obligor shall not have any right of contribution against
or to be subrogated to any claim against, the EIF in relation to any
obligation of or payment by an Obligor under the Finance Documents.
45.3 Amounts Payable
Where an amount may become payable hereunder to a Participating Lender to
enable it to make a payment to the EIF, such amount shall become payable
notwithstanding that any such payment to the EIF by such Participating
Lender may be limited by reference to amounts received by it from an
Obligor.
45.4 Payment without investigation
The Obligors irrevocably direct the EIF to pay without investigation or
confirmation from an Obligor any amount claimed from it by a Participating
Lender pursuant to the Participation Agreement notwithstanding that any
Obligor may dispute the validity of such claim.
45.5 Obligations not impaired
The obligations of the Obligors to the EIF shall not be impaired by any
amendment of the Participation Agreement or any other circumstance which,
but for this Clause 45.5, might impair such obligations.
45.6 Right of Subrogation and Assignment
The Obligors acknowledge that, upon the EIF making payment under the
Participation Agreement to a Participating Lender in respect of and equal
to an amount (the "Overdue Amount") payable by the Obligors hereunder, the
EIF shall be entitled, at its option, to be subrogated (with effect from
notice thereof to the Facility Agent) to or have assigned or transferred
to it, such Participating Lender's rights relating to such Overdue Amount
and any other security therefor or to be entitled to receive from such
Participating Lender under the Participation Agreement each amount
thereafter applied by such Participating Lender towards the Overdue
Amount.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
SIGNATURES
The Parent
COMPLETEL EUROPE N.V.
By: /s/ XXXX XXXXXX
Address: Xxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Fax: 00 31 20 666 1666
The Obligor's Agent
COMPLETEL S.A.S.
By: /s/ XXXX XXXXXX
Address: Washington Plaza, Immeuble Artois 44, rue Washington,
75408 Xxxxx Xxxxx 00, Xxxxxx
Fax: 00 33 1 53 53 83 84
The Borrowers
COMPLETEL ECC B.V.
By: /s/ XXXX XXXXXX
Address: Xxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Fax: 00 31 20 666 1666
COMPLETEL GmbH
By: /s/ XXXX XXXXXX
Address: Hans-Stiessberger - Xxxxxxx 0x, 00000 Xxxx xxx Xxxxxxx,
Xxxxxxx
Fax: 00 49 89 45 69 68 56
COMPLETEL SERVICES S.A.S.
By: /s/ XXXX XXXXXX
Address: Washington Plaza, Immeuble Artois 44, rue Washington,
75408 Xxxxx Xxxxx 00, Xxxxxx
Fax: 00 33 1 53 53 83 84
COMPLETEL S.A.S.
By: /s/ XXXX XXXXXX
Address: Washington Plaza, Immeuble Artois 44, rue Washington,
75408 Xxxxx Xxxxx 00, Xxxxxx
Fax: 00 33 1 53 53 83 84
The Original Guarantors
COMPLETEL EUROPE N.V.
By: /s/ XXXX XXXXXX
Address: Xxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Fax: 00 31 20 666 1666
COMPLETEL ECC B.V.
By: /s/ XXXX XXXXXX
Address: Xxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Fax: 00 31 20 666 1666
COMPLETEL HOLDING I B.V.
By: /s/ XXXX XXXXXX
Address: Xxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Fax: 00 31 20 666 1666
COMPLETEL HOLDING II B.V.
By: /s/ XXXX XXXXXX
Address: Xxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Fax: 00 31 20 666 1666
COMPLETEL GmbH
By: /s/ XXXX XXXXXX
Address: Hans-Stiessberger - Xxxxxxx X, 00000 Xxxx xxx Xxxxxxx,
Xxxxxxx
Fax: 00 49 89 45 46 51 99
COMPLETEL SERVICES S.A.S.
By: /s/ XXXX XXXXXX
Address: Washington Plaza, Immeuble Artois 44, rue Washington,
75408 Xxxxx Xxxxx 00, Xxxxxx
Fax: 00 33 1 53 53 83 84
COMPLETEL S.A.S.
By: /s/ XXXX XXXXXX
Address: Washington Plaza, Immeuble Artois 44, rue Washington,
75408 Xxxxx Xxxxx 00, Xxxxxx
Fax: 00 33 1 53 53 83 84
ACCES ET SOLUTIONS INTERNET S.A.R.L.
By: /s/ XXXX XXXXXX
Address: Double Mixte, 00 Xxxxxxxxx xx 00 Xxxxxxxx 0000, 00000
Xxxxxxxxxxxx Xxxxx, Xxxxxx
Fax: 00 33 4 78 93 00 99
COMPLETEL UK LIMITED
By: /s/ XXXX XXXXXX
Address: x/x Xxxxx Xxxxxxx & Xxxx, Xxxxxxxxx House, 00 Xxxxxx Xxx,
Xxxxxx X0X 0XX
Fax: x00 (0)000 000 0000
iPCENTA LIMITED
By: /s/ XXXX XXXXXX
Address: Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx,
XX0 0XX
Fax: x00 (0)000 000 0000
COMPLETEL SPC
By: /s/ XXXX XXXXXX
Address: x/x Xxxxx Xxxxxxx & Xxxx, Xxxxxxxxx House, 00 Xxxxxx Xxx,
Xxxxxx X0X 0XX
Fax: x00(0) 000 000 0000
COMPLETEL SPC II
By: /s/ XXXX XXXXXX
Address: x/x Xxxxx Xxxxxxx & Xxxx, Xxxxxxxxx House, 00 Xxxxxx Xxx,
Xxxxxx X0X 0XX
Fax: x00(0) 000 000 0000
The Lead Arrangers
XXXXXXX SACHS INTERNATIONAL
By: /s/ XXXXXXX XXXXXXXX
Address: Xxxxxxxxxxxx Xxxxx, 000 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
Fax: x00 000 000 0000
PARIBAS
By: /s/ XXXXXX XXXXXX
Address: 00 Xxxxx xx Xxxxxx, Xxxxx Xxxxxx 00000
Xxxxx Xxxxx 00
Xxxxxx
Fax: 0331 42 98 09 79
The Facility Agent
PARIBAS
By: /s/ XXXXXXX XXXXXXXX
Address: 00 Xxxxx xx Xxxxxx Xxxxx Xxxxxx
00000 Xxxxx Cedex 01
Fax: + 33 1 42 98 43 17
Attention: Xxxxxxx Xxxxxxxx
The Security Agent
PARIBAS
By: /s/ XXXXXXX XXXXXXXX
Address: 00 Xxxxx xx Xxxxxx Xxxxx Xxxxxx
00000 Xxxxx Cedex 01
Fax: + 33 1 42 98 43 17
Attention: Xxxxxxx Xxxxxxxx
The Risk Participant
EUROPEAN INVESTMENT FUND
By: /s/ GERBRAND G. HOP
The Banks
XXXXXXX SACHS INTERNATIONAL
By: /s/ XXXXXXX XXXXXXXX
PARIBAS
By: /s/ XXXXXX XXXXXX
BARCLAYS BANK PLC
By: /s/ XXXXXXX XXXXXXXX
CITIBANK INTERNATIONAL PLC
By: /s/ XXXXXXXX XXXXXXX
COMPTOIR DES ENTREPRENEURS
By: /s/ XXXXXXX XXXXXXXX
CREDIT LYONNAIS
By: /s/ XXXXXXX XXXXXXXX
XXXXXXX XXXXX CAPITAL MARKETS BANK LIMITED
By: /s/ XXXXXXX XXXXXXXX
SCOTIABANK EUROPE PLC
By: /s/ XXXXXXX XXXXXXXX
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
ACTING THROUGH ITS PARIS BRANCH
By: /s/ XXXXXXX XXXXXXXX
CREDIT AGRICOLE INDOSUEZ
By: /s/ XXXXXXX XXXXXXXX
BANCA NAZIONALE DEL LAVORO S.p.A. - Paris Branch
By: /s/ XXXXXXX XXXXXXXX
IBM FRANCE FINANCEMENT S.A.
By: /s/ XXXXXXX XXXXXXXX
